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Re: [tips_and_tricks] Re: IRS Substitute For Return authority

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  • BOB GREGORY
    *See comments interspersed in the text below.* On Sun, Nov 28, 2010 at 6:27 PM, Patrick McKEE ... *The Secretary has made no substantive regulation in Part 1
    Message 1 of 22 , Nov 29, 2010
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      See comments interspersed in the text below.

      On Sun, Nov 28, 2010 at 6:27 PM, Patrick McKEE <paradoxmagnus@...> wrote:
       

      According to the IRS regulations, the income tax is IMPOSED upon the “taxable income” of certain INDIVIDUALS.

       

      26 CFR 1.1-1  Income tax on individuals.

      (a) General rule. (1) Section 1 of the Code imposes an income tax on the income of every individual who is a citizen or resident of the United States and, to the extent provided by section 871(b) or 877(b), on the income of a nonresident alien individual. For optional tax in the case of taxpayers with adjusted gross income of less than $10,000 (less than $5,000 for taxable years beginning before January 1, 1970) see section 3. The tax imposed is upon taxable income (determined by subtracting the allowable deductions from gross income). The tax is determined in accordance with the table contained in section 1. See subparagraph (2) of this paragraph for reference guides to the appropriate table for taxable years beginning on or after January 1, 1964, and before January 1, 1965, taxable years beginning after December 31, 1964, and before January 1, 1971, and taxable years beginning after December 31, 1970. In certain cases credits are allowed against the amount of the tax. See part IV (section 31 and following), subchapter A, chapter 1 of the Code. In general, the tax is payable upon the basis of returns rendered by persons liable therefor (subchapter A (sections 6001 and following), chapter 61 of the Code) or at the source of the income by withholding. For the computation of tax in the case of a joint return of a husband and wife, or a return of a surviving spouse, for taxable years beginning before January 1, 1971, see section 2. The computation of tax in such a case for taxable years beginning after December 31, 1970, is determined in accordance with the table contained in section 1(a) as amended by the Tax Reform Act of 1969. For other rates of tax on individuals, see section 5(a). For the imposition of an additional tax for the calendar years 1968, 1969, and 1970, see section 51(a).

      http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&rgn=div8&view=text&node=26:1.0.1.1.1.0.1.2&idno=26 

       

      Here are the DEFININTIONS of some words that people may want to keep in mind.

       

      INDIVIDUAL - 1 obsolete : INSEPARABLE, 2 a : of, relating to, or distinctively associated with an individual <an individual effort> b : being an individual or existing as an indivisible whole c : intended for one person <an individual serving>, 3 : existing as a distinct entity : SEPARATE, 4 : having marked individuality <an individual style>, synonyms see SPECIAL, CHARACTERISTIC

      http://www.merriam-webster.com/dictionary/INDIVIDUAL

       

       

      LIABLE - 1 a : obligated according to law or equity : responsible b : subject to appropriation or attachment, 2 a : being in a position to incur —used with to <liable to a fine> b : exposed or subject to some usually adverse contingency or action <watch out or you're liable to fall>

      http://www.merriam-webster.com/dictionary/liable

       

      NOTICE - 1 a  : a notification or communication of a fact, claim, demand, or proceeding, see also process service;  The requirements of when, how, and what notice must be given to a person are often prescribed by a statute, rule, or contract. b  : awareness of such a fact, claim, demand, or proceeding

      http://research.lawyers.com/glossary/notice.html

       

      REQUIREMENT - something required: a : something wanted or needed : necessity <production was not sufficient to satisfy military requirements> b : something essential to the existence or occurrence of something else : condition <failed to meet the school's requirements for graduation>

      http://www.merriam-webster.com/dictionary/requirement

       

      REQUIRE - 1 a : to claim or ask for by right and authority b archaic : request, 2 a : to call for as suitable or appropriate <the occasion requires formal dress> b : to demand as necessary or essential : have a compelling need for <all living beings require food>, 3 : to impose a compulsion or command on : compel, 4 chiefly British : to feel or be obliged —used with a following infinitive <one does not require to be a specialist — Elizabeth Bowen>

      http://www.merriam-webster.com/dictionary/required

       

      So WHO are those INDIVIDUALS that are LIABLE for INCOME TAX & thus are REQUIRED to file a return?

       

      26 USC 6001. Notice or regulations requiring records, statements, and special returns

      Every person liable for any tax imposed by this title, or for the collection thereof, shall keep such records, render such statements, make such returns, and comply with such rules and regulations as the Secretary may from time to time prescribe. Whenever in the judgment of the Secretary it is necessary, he may require any person, by notice served upon such person or by regulations, to make such returns, render such statements, or keep such records, as the Secretary deems sufficient to show whether or not such person is liable for tax under this title. The only records which an employer shall be required to keep under this section in connection with charged tips shall be charge receipts, records necessary to comply with section 6053 (c), and copies of statements furnished by employees under section 6053 (a).

      http://www.law.cornell.edu/uscode/26/usc_sec_26_00006001----000-.html

       

      26 USC 6011. General requirement of return, statement, or list

      (a) General rule

      When required by regulations prescribed by the Secretary any person made liable for any tax imposed by this title, or with respect to the collection thereof, shall make a return or statement according to the forms and regulations prescribed by the Secretary. Every person required to make a return or statement shall include therein the information required by such forms or regulations.

      [REST OMITTED]

      http://www.law.cornell.edu/uscode/26/usc_sec_26_00006011----000-.html

       


      The Secretary has made no substantive regulation in Part 1 of 26 CFR requiring anyone to make a return. 
       

      Did the IRS INITIALLY give us NOTICE that we were an INDIVIDUAL REQUIRED to either FILE a RETURN or otherwise make a DETIRMINATION that we are LIABLE for INCOME TAX & thus SUBJECT to WITHHOLDING?

       

      26 CFR 31.6001-6   Notice by district director requiring returns, statements, or the keeping of records.

      The district director may require any person, by notice served upon him, to make such returns, render such statements, or keep such specific records as will enable the district director to determine whether or not such person is liable for any of the taxes to which the regulations in this part have application.

       

      http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=de87314e866de9fe6728f4c7589924f1&rgn=div8&view=text&node=26:15.0.1.1.1.7.16.6&idno=26

       

       

      31.0-1   Introduction.

      (a) In general. The regulations in this part relate to the employment taxes imposed by subtitle C (chapters 21 to 25, inclusive) of the Internal Revenue Code of 1954, as amended. References in the regulations to the “Internal Revenue Code” or the “Code” are references to the Internal Revenue Code of 1954, as amended, unless otherwise indicated.

      ...

      (b) Division of regulations. The regulations in this part are divided into 7 subparts. Subpart A contains provisions relating to general definitions and use of terms, the division and scope of the regulations in this part, and the extent to which the regulations in this part supersede prior regulations relating to employment taxes...Subpart E relates to the collection of income tax at source on wages under chapter 24 of the Code. Subpart F relates to the provisions of chapter 25 of the Code which are applicable in respect of the taxes imposed by chapters 21 to 24, inclusive, of the Code. Subpart G relates to selected provisions of subtitle F of the Code, relating to procedure and administration, which have special application in respect of the taxes imposed by subtitle C of the Code. Inasmuch as these regulations constitute Part 31 of Title 26 of the Code of Federal Regulations, each section of the regulations is preceded by a section symbol and 31 followed by a decimal point (§31.). Sections of law or references thereto are preceded by “Sec.” or the word “section”.

       

      [T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 8723, 62 FR 37492, July 14, 1997]

       

      Or did people merely ASSUME that they were LIABLE FOR INCOME TAX IMPOSED UNDER SUBTITLE A & either FILE a return and/or ask for WITHHOLDING which is for LIABILITY FOR INCOME TAX IMPOSED UNDER SUBTITLE A & it is collected at the source?


         Correct.  26 CFR Part 31 deals only with Employment Taxes and Collection of Taxes at the Source.  It does not relate in any way to Income Tax considered in the ordinary sense.  There is no statement of liability for the income tax per se except in 26 CFR 1.1-1, but, as I explained in a post yesterday, that regulation is not substantive and does not have the force of law.  Moreover, there is no district directory anywhere who can perform the function.  All district directors and their districts were disestablished back in 2001.                   

       

      26 USC 3402. Income tax collected at source

      (a) Requirement of withholding

      (1) In general

      Except as otherwise provided in this section, every employer making payment of wages shall deduct and withhold upon such wages a tax determined in accordance with tables or computational procedures prescribed by the Secretary. [REST OMITTED]

      …Definition of wages for COLLECTION OF INCOME TAX AT SOURCE

      3401. Definitions

      (a) Wages
      For purposes of this chapter, the term “wages” means all remuneration (other than fees paid to a public official) for services performed by an employee for his employer, including the cash value of all remuneration (including benefits) paid in any medium other than cash

        But what is an employee?

                    
                     (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.

        What does "includes" or "including" mean when used in Title 26?  This definition is from 26 USC 7701, which applies to all parts of Title 26:

      (c) Includes and including
      The terms “includes” and “including” when used in a definition contained in this title shall not be deemed to exclude other things otherwise within the meaning of the term defined.

      How are those terms defined in the well-known Black's Law Dictionary?

      Expressio unius est exclusio alterius.A maxim of statutory interpretation meaning that the expression of one thing is the exclusion of another.Burgin v. Forbes, 293 Ky. 456, 169 S.W.2d 321, 325; Newblock v. Bowles, 170 Okl. 487, 40 P.2d 1097, 1100.Mention of one thing implies exclusion of another.When certain persons or things are specified in a law, contract, or will, an intention to exclude all others from its operation may be inferred.Under this maxim, if statute specifies one exception to a general rule or assumes to specify the effects of a certain provision, other exceptions or effects are excluded.”

      What have courts said about "includes" and "including?"

      Includes is a word of limitation.Where a general term in Statute is followed by the word, ‘including’ the primary import of the specific words following the quoted words is to indicate restriction rather than enlargement.” [Powers ex re. Covon v. Charron R.I., 135 A. 2nd 829, 832 ]

      "It is axiomatic that the statutory definition of the term excludes unstated meanings of that term.  Colautti v. Franklin, 439 U.S. 379

      "Include or the participial form thereof, is defined to comprise within’; ‘to hold’; ‘to contain’; ‘to shut up’; and synonyms are  ‘contain’; ‘enclose’; ‘comprehend’; ‘embrace’.”  [U.S. Supreme Court, Montello Salt co. v. Utah, 221 U.S. 452, at 455, 466.]

      “This fact only underscores our duty to refrain from reading a phrase into the statute when Congress has left it out. " '[W]here Congress includes particular language in one section of a statute but omits it in another ..., it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.' " Russello v United States, 464 US 16, 23, 78 L Ed 2d 17, 104 S Ct. 296 (1983)

      Rules of Statutory Construction for tax laws:  "expressio unius, exclusio alterius":  if one or more items is specifically listed, omitted items are purposely excluded.  See Becker v. United States, 451 U.S. 1306 (1981)

      [Federal Tax Research: Guide to Materials and Techniques, Copyright 1990, Fifth Edition

      “In the interpretation of statutes levying taxes, it is the established rule not to extend their provisions by implication beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out.  In case of doubt they are construed most strongly against the government and in favor of the citizen.”

      [Gould v. Gould, 245 U.S. 151, at 153 (1917)]

      And what is an employer?


        (d) Employer
      For purposes of this chapter, the term “employer” means the person for whom an individual performs or performed any service, of whatever nature, as the employee of such person

      Consequently, if "employees" are officers, employees or elected officials, etc. as defined above and "includes" is a restrictive term as the Supreme Court has repeatedly ruled, and if "wages" means remuneration paid to employees, apparently the vast majority of people do not earn "wages."  And if an "employer" is the person for whom "employees" perform services, then "employers" are by necessity the federal government, state governments, county governments, city governments and any of their agencies or instrumentalities.  Consequently, though various businesses are commonly called employers, they are not "employers" in the sense of the legally defined term, and they do not pay "wages."

      n) Employees incurring no income tax liability

      Notwithstanding any other provision of this section, an employer shall not be required to deduct and withhold any tax under this chapter upon a payment of wages to an employee if there is in effect with respect to such payment a withholding exemption certificate (in such form and containing such other information as the Secretary may prescribe) furnished to the employer by the employee certifying that the employee—

      (1) incurred no liability for income tax imposed under subtitle A for his preceding taxable year, and

      (2) anticipates that he will incur no liability for income tax imposed under subtitle A for his current taxable year.

      The Secretary shall by regulations provide for the coordination of the provisions of this subsection with the provisions of subsection (f).

      http://www4.law.cornell.edu/uscode/html/uscode26/usc_sec_26_00003402----000-.html

       

       

      26 CFR 31.0-2 General definitions and use of.

      (a) In general. As used in the regulations in this part, unless otherwise expressly indicated--
      (1) The defined in the provisions of law contained in the regulations in this part shall have the meanings so assigned to them.

      (e) Subpart E. As used in Subpart E of this part, unless otherwise expressly indicated, tax means the tax required to be deducted and withheld from wages under section 3402 of the Code.

      [T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6606, 27 FR 8516, Aug. 25, 1962; T.D. 6658, 28 FR 6631, June 27, 1963; T.D. 6983, 33 FR 18013, Dec. 4, 1968; T.D. 7280, 38 FR 18369, July 10, 1973]

      http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&sid=b37a99717d09637361325eef106cc520&rgn=div8&view=text&node=26:15.0.1.1.2.1.8.2&idno=26

       

       

      31.0-3   Scope of regulations.

      ...

      (d) Subpart E. The regulations in Subpart E of this part relate to the withholding under chapter 24 of the Code of income tax at source on wages paid after 1954, regardless of when such wages were earned. The regulations in Subpart E of this part include provisions relating to the definition of terms applicable in the determination of the tax under chapter 24 of the Code, such as “employee”, “employer”, and “wages”. (For prior regulations on similar subject matter, see 26 CFR (1939) Part 406 (Regulations 120).)

      ...

      [T.D. 6516, 25 FR 13032, Dec. 20, 1960, as amended by T.D. 6744, 29 FR 8305, July 2, 1964; T.D. 8723, 62 FR 37493, July 14, 1997]

       

      http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr;sid=4ce6a68d01f01af644b339bee6ee6d44;rgn=div5;view=text;node=26%3A15.0.1.1.2;idno=26;cc=ecfr#26:15.0.1.1.2.1.8.3

       

       

      Exemption from federal income tax withholding. Generally, an employee may claim exemption from federal income tax withholding because he or she had no income tax liability last year and expects none this year. See the Form W-4 instructions for more information. However, the wages are still subject to social security and Medicare taxes. See also Invalid Forms W-4 on page 17.  IRS Publication 15, (Circular E), Employer’s Tax Guide, page 15

      http://www.irs.gov/pub/irs-pdf/p15.pdf


       

       

      Patrick in California


    • Jake
      Michael, referring to Brafman v. U.S. decision I quoted from, sez:     Carry out the intent of Congress? Here are a few paragraphs from an article Dan
      Message 2 of 22 , Nov 30, 2010
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      Michael, referring to Brafman v. U.S. decision I quoted from, sez:
         > Carry out the intent of Congress? Here are a few paragraphs from an article Dan Meador published, written by William Cooper, entitled "BATF/IRS - - Criminal Fraud:" 
      I often quote from "legal precedent" decisions because in a real world case it matters not what you or anyone else thinks about any issue already settled by the courts, right or wrong - the court rulings are what we have to live with, like it or not.
         > The organization of the Department of the Treasury can be found in 31 United States Code, Chapter 3, beginning on page 7.

      Incomplete citations slow even people who know what they're looking for down & I'm assuming you mean Title 31, Subtitle I, Chapter 3 (Dept. of the Treasury), Subchapter I (Organization), (§§ 301 - 313), or simply 31 U.S.C §§ 301 - 313.
         > The Bureau of Internal Revenue, and the alleged Internal Revenue Service, were not created by Congress. These are not organizations or agencies of the Department of the Treasury, or of the federal government.
      The 1st statement is true; the 2nd is false.  One of the best pieces of evidence is the "Andrews Memo" I posted quite some time ago & have attached again, which proposed a name change from Bureau of Internal Revenue to Internal Revenue Service.  That Memo was from the Commissioner of Internal Revenue to the Secretary of the Treasury & the Secretary signed the order.  Quoting from the Memo,
         The proposed Treasury Department order, which is submitted for your signature, has been prepared for the purpose of changing the name of the Bureau of Internal Revenue to the Internal Revenue Service.  It seems to me that there is some real practical psychological value to be derived from the substitution of the word "Service" for "Bureau."  (emphasis added)   The name "Bureau of Internal Revenue" is not a name created by statute, but has been adopted by usage.  Our organization is referred to frequently in our official documents as "The Internal Revenue Service" and in my opinion is the preferable designation. 
      Then Mr. Andrews, who blasted the IRS & it's operation after he left his short stint as Commissioner of Internal Revenue, went on to explain the statutory origin of his office, citing The Act of July 1, 1862 (12 Stat. 432), The Act of December 24, 1872 (17 Stat. 401), and he closes by saying, ". . . there has been no substantial change in the statutory position of the Commissioner and his office from The Act of December 24, 1872 to the present day.
      In simple terms, the IRS, the BATF, etc. are merely bureaucracies which extend from the Office of Commissioner of Internal Revenue, which WAS created by Congress, although the individual sub-agencies & the bureaucracy as a whole was not.  The Office of Commissioner, like just about any other dept. of the gov't, it just got bigger & bigger, adding more subdivisions & personnel as the country & the population grew.
      Certainly the beast grew out of control long ago & officers/agents/employees of the subdivisions break the law every day, but replacing the statutory origin of the office of Commissioner of Internal Revenue with any number of speculative theories steers people away from the facts.  I don't like those "Civil War" & "Reconstruction Acts" any better than you do, but they are what they are - the Commissioner is a position created by CONgress within the Treasury Dept. & the IRS, BATF, etc. are under the Commissioner.
      ~ ~ ~  
    • BOB GREGORY
      *I did not just make up that statement out of some part of my anatomy. It ... I did not just make up that statement out of some part of my anatomy.  It is in
      Message 3 of 22 , Dec 1, 2010
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        I did not just make up that statement out of some part of my anatomy.  It is in the Administrative Procedure Act.  It is implemented by regulations in 1 CFR.

        Note that 26 USC 6203 and its implementing regulation at 26 CFR 1.6203-1 do not require the people (taxpayers) to DO anything.  They place responsibility on the Secretary.  Consequently 6203 does not need a substantive regulation.  Yet in this case the Congress TOLD the Secretary he would need to prescribe rules or regulations, so he did in Part 301, with contains interpretive and administrative regulations for running the Department of the Treasury.

        It is entirely logical that the court should rule that the Treasury Department must follow its own regulations, particularly when, according to Congress, regulations would be needed to flesh out the details or their requirement in the law.

        I do not disagree with the Fawcus Machine Co. case cited below, but it was about a corporate excess profits tax and had nothing to do with 301.6302-1.  Since the case was in 1918, it pre-dated the Administrative Procedure Act and its clear differentiation of substantive and interpretive regulations and the codification of those regulations into different parts of the CFR depending on whether or not they were substantive or administrative/interpretive/procedural.

        The following is from 26 CFR 601.702:

        (a) Publication in the Federal Register—(1) Requirement. (i) Subject to the application of the exemptions and exclusions described in the Freedom of Information Act, 5 U.S.C. 552(b) and (c), and subject to the limitations provided in paragraph (a)(2) of this section, the IRS is required under 5 U.S.C. 552(a)(1), to state separately and publish currently in theFederal Registerfor the guidance of the public the following information—

        (A) Descriptions of its central and field organization and the established places at which, the persons from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions, from the IRS;

        (B) Statement of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures which are available;

        (C) Rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;

        (D) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the IRS; and

        (E) Each amendment, revision, or repeal of matters referred to in paragraphs (a)(1)(i)(A) through (D) of this section.

        (ii) Pursuant to the foregoing requirements, the Commissioner publishes in theFederal Registerfrom time to time a statement, which is not codified in this chapter, on the organization and functions of the IRS, and such amendments as are needed to keep the statement on a current basis. In addition, there are published in the Federal Register the rules set forth in this part 601 (Statement of Procedural Rules), such as those in paragraph E of this section, relating to conference and practice requirements of the IRS; the regulations in part 301 of this chapter (Procedure and Administration Regulations); and the various substantive regulations under the Internal Revenue Code of 1986, such as the regulations in part 1 of this chapter (Income Tax Regulations), in part 20 of this chapter (Estate Tax Regulations), and in part 31 of this chapter (Employment Tax Regulations).


        Note that substantive regulations are "adopted as authorized by law" and published in part 1 (in the case of Income Tax Regulations).  Note also that this regulation clearly identifies part 301 as containing Procedure and Administrative Regulations. 

        Regardless of where they are found, regulations must cite an authority.  If that authority is not a section of the USC (in addition to 26 USC 7805 in the case of 26 CFR) or a Statute at Large then that regulation is not a substantive or legislative regulation and does not have the force of law.  Treasury directives will not substitute for an actual law passed by Congress as authority for a substantive regulation.

                

        A court that enforces an interpretive regulation as if it has the force of law is wrong.  That does not mean it cannot happen.  Courts are wrong all the time.  The problem is in determining which courts are wrong.  Sometimes a lower court is right but an appeals court reverses, in which case the appeals court is wrong.  In other cases the lower court is wrong and the appeals court reverses, and the appeals court is right.  Sometimes the appeals court agrees with the lower court and both are right.  Sometimes both are wrong.  The Supreme Court has created a way to dodge its responsibilities by using certiorari as a shield against having to deal with a hot potato subject, usually one involving a case in which the government is a party and a constitutional issue is involved in which the government has taken a position contrary to earlier solid Supreme Court rulings.  Rather than get into the tall weeds and rule against the government and thus kill some sacred cow (such as income tax administration?) or overturn a century of correct rulings, the big dudes in black dresses just deny certiorari.  Thus the game is played and the sacred cow is preserved.

        ==============================================                           






                                      


        On Mon, Nov 29, 2010 at 11:47 PM, Jake <jake_28079@...> wrote:
         

           > Not all regulations have the force of law.  Only substantive (or legislative) regulations do. No regulation in Part 301 of Title 26 CFR has the force of law.


        The U.S. courts of appeals don't agree & regarding Part 301 in particular (Procedure & Administration), have applied the regulations since the statute doesn't say how it is to be applied. A perfect example being 26 U.S.C. & 26 CFR 301.6302-1 (emphasis added):


      • Patrick McKEE
        Bob Gregory said that 26 CFR Part 31 deals only with Employment Taxes and Collection of Taxes at the Source. It does not relate in any way to Income Tax
        Message 4 of 22 , Dec 1, 2010
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          Bob Gregory said that “ 26 CFR Part 31 deals only with Employment Taxes and Collection of Taxes at the Source.  It does not relate in any way to Income Tax considered in the ordinary sense.” I strongly DISAGREE.

           

          CHAPTER 24 is entitled COLLECTION OF INCOME TAX AT SOURCE ON WAGES.  It does NOT impose ANY TAX & the TAX required to be DEDUCTED & WITHHELD is for LIABILITY FOR INCOME TAX IMPOSED UNDER SUBTITLE A.

           

          The REGULATIONS for CHAPTER 24 are contained in 26 CFR Part 31 & 26 CFR 31.6001 specifically gives the DISTRICT DIRECTOR the AUTHORITY to give NOTICE to people & thereby REQUIRE them to “to make such returns, render such statements, or keep such specific records as will enable the district director” to make a DETIRMINATION whether or not they are “liable for any of the taxes to which the regulations in this part have application.”

           

          WHY would I care about the DEFINITIONS of “wages” & “employee” IF I am NOT an INDIVIDUAL for whom WITHHOLDING is REQUIRED since the WITHHOLDING provisions are for INCOME TAX LIABILITY?

           

          Patrick in California

           

          Founder, ALLIANCE for PEACE & PROSPERITY

          http://groups.yahoo.com/group/alliancepeaceprosperity/

           

          "It ain't what ya don't know that hurts ya. What really puts a hurtin' on ya is what ya knows for sure, that just ain't so." -- Uncle Remus

        • BOB GREGORY
          *Titles in the USC have no legal meaning and are even often misleading (and apparently intentionally so in some cases). Withholding taxes are NOT income taxes
          Message 5 of 22 , Dec 2, 2010
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            Titles in the USC have no legal meaning and are even often misleading (and apparently intentionally  so in
            some cases). 

            Withholding taxes are NOT income taxes but are collected as deposits against the assumed tax liability of the worker from whom they are withheld.  The actual wording of the law is:   

            Except as otherwise provided in this section, every employer
            making payment of wages shall deduct and withhold upon such wages
             a tax determined in accordance with tables or computational
             procedures prescribed by the Secretary.


              That assumption is based on the completion of a W4 by the worker.  There is no statutory requirement for completing the W4 unless the worker had a liability the previous year.  But businesses which hire people have been misled into believing that they are "employers" and that the people who work for them are "employees."  After the W4 is completed and the worker earns money, the business produces the information return known as a W2 which shows that the worker is an "employee" and that he or she has been paid "wages." 

            The "employer" is made liable for paying the taxes withheld (which have no specific name other than Payroll Taxes that I have spotted in Title 26)[26 USC 3403][also 26 USC 1461 for non-resident aliens and foreign corporations].  You can go to uscode.house.gov and search all of Title 26 or just Subtitle A for the words "liable" and "liability" to see where they appear and how they are applied.

            Please remember that the district director who has authority to give notice to people and require them to make returns DOES NOT EXIST and has not existed since 2001.  Does anyone really believe that over a period of nearly ten years the Secretary of the Treasury and his vast Treasury Department just overlooked or just have not had time to change all those regulations which make district directors responsible for such things?  Almost all of the dire sounding requirements for canvassing and collecting are in Subtitle F of Title 26. So even if there were directors, the requirements laid on them do not necessarily apply the the tax in Subtitle A.  Subtitle F. contains sections of the code which relate to the procedure and administration of ALL taxes in the code, including alcohol, tobacco, firearms, motor fuels, explosives, bows and arrows, etc.  The code has been mixed up and weasel-worded so that it is virtually impossible to distinguish among the sections according to which taxes they apply to.  That is no accident.  The fact that some of these provisions of law existed before the income tax and before the United States Code is a clue that they were not intended to be applied to income taxes.  This can be determined with some difficulty by looking at the notes on sources and amendments linked in the right sidebar for each code section on the Cornell LII site.  Some, however, do say that they apply to "any tax under this code" or words to that effect.

            =========================== 

                                    


            On Wed, Dec 1, 2010 at 11:02 PM, Patrick McKEE <paradoxmagnus@...> wrote:
             

            Bob Gregory said that “ 26 CFR Part 31 deals only with Employment Taxes and Collection of Taxes at the Source.  It does not relate in any way to Income Tax considered in the ordinary sense.” I strongly DISAGREE.

             

            CHAPTER 24 is entitled COLLECTION OF INCOME TAX AT SOURCE ON WAGES.  It does NOT impose ANY TAX & the TAX required to be DEDUCTED & WITHHELD is for LIABILITY FOR INCOME TAX IMPOSED UNDER SUBTITLE A.

             



          • JcP
            TITLE 26 Subtitle F CHAPTER 80 Subchapter A § 7806 Construction of title it says: (a) Cross references The cross references in this title to other
            Message 6 of 22 , Dec 2, 2010
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              TITLE 26  Subtitle F  CHAPTER 80  Subchapter A  § 7806 Construction of title it says:

              (a) Cross references

              The cross references in this title to other portions of the title, or other provisions of law, where the word "see" is used, are made only for convenience, and shall be given no legal effect.

              (b) Arrangement and classification

              No inference, implication, or presumption of legislative construction shall be drawn or made by reason of the location or grouping of any particular section or provision or portion of this title, nor shall any table of contents, table of cross references, or similar outline, analysis, or descriptive matter relating to the contents of this title be given any legal effect. The preceding sentence also applies to the sidenotes and ancillary tables contained in the various prints of this Act before its enactment into law.

               

              Paragraph (a) proves what the subject matter is. (b) very plainly says that no parts of title 26 can be used for LEGAL REFERENCE.

            • Jake
                 Paragraph . . . (b) very plainly says that no parts of title 26 can be used for LEGAL REFERENCE. It says no such thing - Legal effect and legal
              Message 7 of 22 , Dec 2, 2010
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                   > Paragraph . . . (b) very plainly says that no parts of title 26 can be used for LEGAL REFERENCE.
                It says no such thing - Legal effect" and "legal reference" do NOT mean the same thing. 
                 
                Using a cite from 26 U.S.C. or 26 CFR just tells you where you can find the statute or the regulation cited, but a 26 U.S.C. citation isn't actually the Public Law or Statute @ Large & a 26 CFR isn't actually the Treasury Regulation, so neither cite has "legal effect".  And when people say that Title 26 is not "positive law" they're right, because Congress has not passed the Title as a whole (many others they have).
                 
                But that does NOT mean that you cannot use the citations for "legal reference" & of course it's done every day - because it's just a  lot quicker & easier than stating the full Pub.L. / Stat. or T.R. & if anyone involved in the case wants to look up the actual statute or regulation, they can easily do so using the U.S.C. or CFR citation for refenece.  And they will find that the wording in the original Stat. / Reg. & the version in the U.S.C. / CFR is identical, although the format will be different.
                 
                ~ ~ ~

                --- On Thu, 12/2/10, JcP <jcpes1@...> wrote:

                From: JcP <jcpes1@...>
                Subject: [tips_and_tricks] Re: IRS Substitute For Return authority
                To: tips_and_tricks@yahoogroups.com
                Date: Thursday, December 2, 2010, 11:30 AM

                 

                TITLE 26  Subtitle F  CHAPTER 80  Subchapter A  § 7806 Construction of title it says:

                (a) Cross references

                The cross references in this title to other portions of the title, or other provisions of law, where the word "see" is used, are made only for convenience, and shall be given no legal effect.

                (b) Arrangement and classification

                No inference, implication, or presumption of legislative construction shall be drawn or made by reason of the location or grouping of any particular section or provision or portion of this title, nor shall any table of contents, table of cross references, or similar outline, analysis, or descriptive matter relating to the contents of this title be given any legal effect. The preceding sentence also applies to the sidenotes and ancillary tables contained in the various prints of this Act before its enactment into law.

                 

                Paragraph (a) proves what the subject matter is. (b) very plainly says that no parts of title 26 can be used for LEGAL REFERENCE.


              • BOB GREGORY
                *I believe what JcP meant to say was that no titles, chapter headings or section headings can be used for legal reference because they are not parts of the law
                Message 8 of 22 , Dec 2, 2010
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                  I believe what JcP meant to say was that no titles, chapter headings or section headings can be used for legal reference because they are not parts of the law but merely indications of what is in the particular chapter or section (and even then can be misleading).  Even the code section number is not part of the law though it is used for reference. 

                  And what some codifier decided to CALL a chapter or section or where he decided to PUT a section within the title has no legal implication whatever.  There are cases (very clearly pointed out in Larken Rose's monumental work on 861) where clearly related sections are placed hundreds of pages apart, apparently only for the purpose of making them difficult to find and to relate to each other.


                  Of course Title 26 can be cited because it is prima facie evidence of the law.  However, on rare occasion the wording in the statute is NOT exactly the same as in the code.  That is why the law provides that the Statutes prevail in court when a code title has not been made positive law.


                  On Thu, Dec 2, 2010 at 12:11 PM, Jake <jake_28079@...> wrote:
                   

                     > Paragraph . . . (b) very plainly says that no parts of title 26 can be used for LEGAL REFERENCE.
                  It says no such thing - Legal effect" and "legal reference" do NOT mean the same thing. 
                   

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