Fwd: The TAX on Missouri "Income"
- In a message dated 12/30/2003 8:33:21 PM US Eastern Standard Time, balderdash88@... writes:
The TAX on Missouri "Income"
1.) A provision in the Missouri Constitution at Article X, Section 4(d), allows the Missouri General Assembly to define "income" by reference to provisions of the laws of the United States---.
COMMENT: The above provision allows the Missouri General Assembly to "adopt" a definition for the term "Income" only. It does not authorize the Missouri General Assembly to adopt any and all definitions as used in the federal income tax laws of the United States. Expressio unius est exclusio alterius.
But, a study of RSMo. Section 143.091 will show that the Missouri General Assembly far exceeded the Constitutional authority of Article X, Section 4(d) in that section 143.091 purports to "adopt" the definitional meaning of any and all comparable terms as used in the laws of the United States, relating to federal income taxes. Section 143.091 is ultra vires and unconstitutional.
Disregarding section 143.091, did the Missouri General Assembly create it’s own definition for the word "income" within the Missouri Income Tax Statute? The answer is NO, and without a definition of the term "Income" how is one to know what is or is not income within the statute? Even with section 143.091 there is not any written-out definition of "Income" in the Missouri Income Tax statute.
2.) SECONDARY SUBJECT to consider: AT Article III, Section 1 of the Missouri Constitution the entirety of the legislative power in and for the State of Missouri was vested in a bicameral legislative body called the General Assembly. Pursuant this provision the laws which shall be of effect in Missouri could be created only by the General Assembly. But, in regard to RSMo. Section 143.091 there is an "exception" at Article II, Section 1 of the Missouri Constitution which seems to allow that another "collection of persons", such as the Congress of the United States, might legislate for the State of Missouri in some instances which are "expressly directed or permitted" in the Missouri Constitution. Arguably, Article X, Section 4(d) is one of those "exceptions". The extent of the permission authorized by Article X, Section 4(d) does NOT allow the General Assembly to adopt by reference any definitions other that for the one word "Income". Accordingly, it is suggested, the Missouri Income Tax statute should be viewed as being utterly without any definition for its most necessary word, "Income".
3.) The Missouri Income Tax statute is necessarily interlinked to and with the Federal Income Tax law in that at section 143.121 the Missouri Adjusted Gross Income is defined as being the Federal Adjusted Gross Income with Missouri modifications and at section 143.111 the Missouri Taxable Income is defined as being the Missouri Adjusted Income less various deductions.
From these provisions it is immediately obvious that if there is no Federal Adjusted Gross Income there cannot be any Missouri Taxable Income.
ITEM: For the ZERO filers groups: At the bottom of a Federal 1040 form just above the signature line(s) is a printed declaration attesting under penalties of perjury that the content of the return are true, correct and complete. It would seems that before a State, such as Missouri can pursue a State deficiency procedure that State must overcome the "barrier" of the Federal perjury statement above, perhaps by way of a State criminal suit and trial for perjury. As best I know this is never done.
4.) IF the Missouri legislature may define "Income" by reference to the laws of the United States pursuant Article X, Section 4(d) of the Missouri Constitution, it follows beyond question that only a legislatively enacted definition as created by the Congress of the United States in a Federal Income Tax statute can be referred to by any Missouri Income Tax statute. So, did the U. S. Congress define the term "Income" in any of the post 1913 Federal Income Tax statutes?
Several Federal court decisions have said that Congress has not defined the term"Income" despite that a so-called "definition" is shown in the 1939 Federal Tax code at section 22(a) and the later Federal Tax codes at section 61(a). See, for example, EISNER v. MACOMBER (1919) 252 US 189, 64 L.Ed. 521, and COMMISSIONER v GLENSHAW GLASS CO. (1955) 348 US 426, 99 L.Ed. 483, and UNITED STATES of America v. Jack BALLARD (____) 535 F. 2d 400 which said at page 404, "The general term "income" is not defined in the (Federal) Internal Revenue Code.", and in CONNOR v. UNITED STATES OF America (1969) 303 F. Supp. 1187, at 1189 the court stated, "No attempt has been made by the Congress to define with specificity the term "income" as it is used in the sixteenth amendment."
Clearly the Congress could have defined the term "Income" as used in the proposed Sixteenth Amendment when it was submitted to the States for ratification. See Congress’ proposal at (1909 Stat. )
After the proposed amendment had been submitted to the States and supposedly ratified in 1913, the Congress was precluded from crafting any definition in any subsequent statute which might differ from the word "Income" as used in the Sixteenth Amendment. But what does the word "Income" as used in the Sixteenth Amendment actually mean? Study the CONNOR v. UNITED STATES case, 303 F.Supp. 1187 and you should learn that even the U. S. Supreme court cannot make up its mind. In the 1919 case of EISNER v. MACOMBER, supra, the U. S. Supreme court formulated its own "all-inclusive" definition, then gradually abandoned its own definition and approached individual cases on an ad hoc basis and finally THREW OUT its own "all-inclusive" definition in the GLENSHAW GLASS CO. Case, supra.
If we rely on the CONNOR v. U.S. case, supra, there simply is NOT a firm and reliable judicial "definition" of Income.
Our concern here, however, is in relation to a legislative definition, one crafted by the Congress and written into a Federal Income Tax statute. In the CONNOR case, supra, the court stated, "In earlier taxing acts (meaning, prior to the Sixteenth Amendment), it (meaning, the Congress) instead provided that "gross income" INCLUDES "gains, profits, and income" from various designated sources "or from any source whatsoever" leaving to administrative and judicial determination the inclusion and exclusion of certain items." From the context of the CONNOR decision the court implied, but did not expressly state, that the provisions of those earlier taxing acts were not a definition. The listing of various "sources" from which gains or profits might be derived is NOT a definition of what "Income" is!
Similarly, section 22(a) of the Federal Internal Revenue Code of 1939 and section 61(a) of the Federal Internal Revenue Code of 1954 (and later?) Are not any different. Although supposedly "definitions" they are in reality little more than shopping lists of ITEMS which might be productive of a taxable income if whatever is income within the act can ever be determined. The court in UNITED STATES v. BALLARD, supra, directly stated, "The general term "income" is not defined in the Internal Revenue Code."
Relying on the rulings in BALLARD and CONNOR and somewhat on the EISNER v. MACOMBER decision, the result is that the federal courts have declared that there is NO legislative definition of "Income" and that all efforts toward a judicial definition have been thrown out. That being the judicially pronounced fact, it must follow that the Missouri General Assembly has not adopted a definition of "Income", RSMo Section 143.091 notwithstanding, because the courts have ruled that the Congress has not defined the term "Income" in any Federal Income Tax statute.
5.) In conclusion: There is NO legislative definition of "Income" within the Missouri Income Tax statute. Upon this basis alone the Missouri Income Tax statute should be declared unconstitutional because of being impermissibly vague. And, IF the Missouri statute is void for vagueness isn’t the federal statute equally void and unconstitutional?
When the state charged me with not filing and not paying, they could not find a statute
so they charged me with the whole chapter! It must be in there somewhere! Actaully,
they can charge one with not filing or not paying but not both and this had much to do
with me winning a new trial on appeal. After 4 date settings for new trial and I refused
a plea bargain with no jail time, case was dismissed!