The Illusion of Tax Evasion

 

By Hans Sherrer

©1998 Revised and updated November 2002 [1]

 

 

“Have you explored the inner relations of an act? Do you know the causes with certainty, why it happened, why it had to happen? If you had, you would hot be so hasty with your judgments.”

Goethe

 

Introduction

 

            Tax evasion is a politically defined legal concept that is anything but a narrow cut and dried issue. There are subtleties of context, as well as concrete determinations involved in assessing whether tax evasion has occurred in every situation where it might be involved. The reality that tax evasion laws have limited applicability is contrary to the common public perception that it is a relatively black and white issue. Consequently, a debunking of the widespread misperception about the nature of tax evasion is needed.

            The lack of comprehension about tax evasion isn’t surprising, since most discussions or proceedings related to criminal laws are conducted from beginning points that place the government’s position in the most favorable possible light. This approach, however, tends to inhibit understanding and obscure contrary points of view that may cast doubt on the government’s perspective, since considering an issue is like looking at a finely cut diamond: The angle one looks at it from can affect what one sees and believes about it. So it is with the tax evasion. This essay concerns itself with a sorely neglected and widely unappreciated aspect of tax evasion: the importance of the mental state of someone suspected or accused of engaging in it.

 I

The Personal Nature of Human Actions

            Like all human activities, understanding tax evasion involves much more than merely looking at what a person has done, but requires an awareness of the person’s intent and purpose underlying that action.

            The hidden depths of the human mind and the mysterious nature of what drives people to act as they do are evidenced countless times each day by events in every person’s life. A cursory look at just one common daily occurrence will suffice to illustrate this point. Let us suppose that in Anycity, USA at three o’clock on a Thursday afternoon, a man is observed parking his car in the parking lot of a convenience store on Third Avenue. He then goes into the store and buys a loaf of white bread. This seemingly ordinary action inspires many questions on the most superficial level of inquiry. Such as, why did he stop at that store? Because he likes the clerk who works at the convenience store on Thursday afternoons? Because he saw the store sign and remembered that he needed a loaf of bread? While the answer to the question of why he stopped at that store at that time on that day is a mystery, there are still other questions that come to mind. For example, why does he need a loaf of white bread? To make sandwiches for his kid’s lunches, or does he have any kids? Is he allergic to whole wheat bread, or does he simply not like it? So the answer to why he bought the white bread is also a mystery. Still another obvious question that begs to be answered is: Why did he buy the bread at three o’clock in the afternoon? Was the man fired from his job? Is he a salesman who stopped at the store on the way to an appointment? Asking these questions don’t in and of themselves solve the mysterious nature of the man’s bread purchase, and they actual raise more questions. The many questions that come to mind about the bread purchase all emphasize the same point: It is not possible for anyone on the planet Earth to legitimately state with a moral certainty the purpose and intent surrounding the purchase of a single loaf of white bread by a single man, based on the knowledge that he has done so. This is equally true of all human action.

            It doesn’t belabor the point to emphasize that while you can observe and record what a man, woman or child has done, it only provides the information for you to guess the why and wherefore of the reasons influencing them to do it. If what a person has done is important for some reason, the intent, purpose and influences behind their actions can’t honestly be ignored as if they didn’t exist, simply because they may seem inexplicable or unfathomable. The fact that you aren’t privy to the innermost processes involved in determining an action someone has taken, doesn’t make those unknown reasons any less real, important or valid. What is known from observing the above mentioned hypothetical man, is that he bought a loaf of white bread in the course of his daily life. What isn’t known are the thought and decision making processes that led up to him doing it? The same could be said for the innumerable other actions comprising the fabric of his life.

            The foregoing is important to understand in the context of tax evasion, because a key element of tax evasion is it involves actions allegedly undertaken by someone with a specific purpose and intent to commit a crime. Hence, it necessarily involves all of the numerous nuances of the nearly indecipherable individual motivations and purposes of action that underlie, and are an inherent part of even the simplest of daily activities, such as the purchase of a single loaf of white bread.

            The recognition that tax evasion involves the complexities of human actors (even when businesses or other organizations are involved, human beings make the decisions) is particularly significant because we live in an age of homogenization and conformity such as the world has never seen before. Multinational corporations have made standardized products and brands of such things as food, clothing, beverages, electronics, entertainment and automobiles widely available not just in the United States, but many parts of the world. Instant global communications has ensured that this centralization hasn’t just occurred in the area of economic products, but has also invaded the area of ideas and politics. [2] Previous generations in all parts of the planet that have been impacted by the technology developed in the past century or so, were much more diversified, regionalized, and individualistic than are their counterparts of today. Pressures from numerous sources in our technological age are tending to blur the nature of individual thought and actions, including those underlying a tax evasion prosecution.

II

The Redefinition of Individualism

            Various aspects of the centralization that is occurring in the United States and the rest of the industrial world, have been noted by a number of observers in the popular print and broadcast media. One of the most striking facets of the ideological consolidation that has been occurring is that the very concept of individualism is being examined and effectively redefined by a segment of the Western world’s intelligentsia. At one time it would have been unthinkable, but it is increasingly being recognized that autonomous and independently thinking individuals have been, and are continuing to be displaced in the United States and other westernized countries by men, women, and children who can be eerily characterized as Stepford clones. [3] The New Individualists - published in 1991 - describes how people are being hardwired through a combination of their genetic make-up, and cultural and educational influences to see themselves as individual components of the organizations they are a part of in same way that an arm is an individual part of the human body. [4] In other words, the sovereign entity is the organization - such as the government - and the individual men, women, and children who accept its authority are only considered an appendage of that entity. [5]

            Proponents of these ideas are not afraid to reveal their objective in reshaping the inner soul of humanity, because the “new individualists” they describe are brazenly referred to as artificial persons. [6] It is little comfort when we are informed in The New Individualists:

“It cannot be emphasized enough that the designation artificial person does not mean these people are becoming phony or insincere. Rather, it refers to a changing conception of what constitutes an individual and indeed makes someone individual. ... It is an individualism predicated not on the self, but on the person: while self connotes a phenomenon that is inner, nonphysical, and isolated, person suggests an entity that is external, physically present, and already connected to the world.” [7]

 

            This description reveals that the very concept of a new individualist constitutes a perverse twisting and outright obfuscation of the definition of the word individualist, which is defined by Merriam-Webster’s Collegiate Dictionary, 10th edition as: “one that pursues a markedly independent course in thought or action.” That has been recognized as the definition of individualist since it was first used in 1840.

            The essential defining element of people referred to as new individualists is they aren’t considered to possess the inner animating life force that has historically been acknowledged as indistinguishable from an individual person exercising it. Their susceptibility to being unnaturally influenced and manipulated by outer stimuli, and their appropriate responses to them, is the most salient common personal characteristic of the new individualists. Thus, the very concept is a mutation of the historical definition of what an individualist is. Particularly considering that when the proper stimulus is applied by the organization(s) a new individualist is a part of, he or she is expected to respond like a Pavlovian dog to the ringing of a bell. [8] The most dutiful of the new individualists repeat and unquestioningly follow the word and letter of rules, regulations, laws, and orders in mantra like fashion. [9] They march in a carefully defined procession while thinking they are retaining the essence of what they’ve been taught is individualism. [10]

            Consequently, the most visible distinguishing characteristic of these new individualists is they essentially mimic the world-view/paradigm of the organizations they are a part of. In the United States the most prominent of these are federal, state and local governments, and those financial, cultural, and educational institutions associated with or dependent on them.

            Interestingly, it is the offspring of parents who are a part of large organizations who are showing the most widespread signs of being infected most deeply with the new individualist syndrome. The spread of the syndrome through the United States like a silent and deadly virus is described in terms that make it sound like a tortuous and unnatural mutation process. [11] The New Individualists describes this process in the following way:

“Out of this slow and agonizing death of the authentic self, there is arising a new social character: the artificial person. This new social character is already discernible among a vanguard of the organization offspring and is now emerging among the remainder; it is likely to spread eventually throughout the middle class and, as often happens, attract the lower class and surround the upper.” [12]

 

            One profound consequence of the spreading of this doctrine through Western culture is that its supporters are becoming ever bolder in publicly endorsing the idea that the government is the sovereign entity and the new individualists are its subjects. Thus, everyone who is inculcated with this doctrine is considered to occupy a subservient position to the government, not unlike that occupied by the British people in relation to the Monarchy under the doctrine of the “divine right of kings.” [13]

            In spite of the proclamations about the emergence of the new individualists, they are at most, only a new phenomenon in the sense that they are becoming more prevalent among the general population in the United States. Those men and women who have always gravitated towards being associated with government and other bureaucratically dominated organizations possess the prototypical mentality that is a defining characteristic of the new individualists. Nevertheless, their creeping spread throughout the general population is of major concern. The acceptance of any doctrine that discounts the independent spiritual and intellectual will of individual men and women as one of its central themes, necessarily precludes recognizing the possibility of genuine individualism that encompasses thoughts and actions freely chosen on the basis of someone’s personal belief and value system. Such a doctrine diminishes the importance accorded independently embraced thoughts, ideas and courses of action that are not dependent on the acceptance, approval or understanding of any other person or organization. It also discounts the role of individually adopted and monitored ethics and moral values in guiding the choices that men, women and children make, and the actions that naturally flow from them. The defining characteristics of the new individualists belittles the possibility that people act on the basis of their own unique conscience and self-chosen value structure, but rather, maintains that a person’s actions and conscious intentions are reflective of a group will that they absorb directly or through a process of associational osmosis.

            A cultivated incredulity for different ideological points of view is an important component of people described as the new individualists, as well as anyone who shares their basic outlook. Their mindset severely limits their vision of human possibilities. So much so, that they find it a difficult, if not impossible to comprehend that someone can honestly act contrary to what is considered to be the “party line” of the organizations they are associated with. They view any conduct that deviates from the norm established by their accepted authorities with suspicion, and even hostility. They also have difficulty imagining that behavior contrary to what is approved by those authorities has not been deliberately done by a person in violation of the rules/law with the specific intention of doing so, knowing it was the wrong thing to do. They have this attitude, because that is the only circumstance under which they would have so acted. This implanted, and in some cases ingrained prejudice against actions and the people engaging in them that may not have official organizational/government sanction, undermines respect for the immense diversity of thought, and peaceful and socially constructive action that human beings routinely engage in. Nevertheless, this attitude of intellectual tunnel vision and denial of the veracity of that which seems unusual isn’t new. It was evidenced in medieval times by the Catholic Church’s response to Galileo’s recognition that the Earth revolved around the Sun, and today by the intolerance of Supreme Court justices to people that have views different than their own. [14]

III

The Non-recognition of Independent Choices

            As the public forums in the United States become increasingly dominated by those who cannot conceive of reliance on independent thought and action as a natural and normal part of their existence, then those who engage in such activities as naturally as they breath, eat and sleep will be isolated from the mainstream of the politically dominated aspects of society to an ever increasing degree. Men and women who exercise individual prerogative are increasingly being labeled as misfits and outsiders - simply because their thinking doesn’t fit the proscribed mold of what is politically/organizationally acceptable. Accepting the idea that people have free will to choose forfends the imposition of a cookie cutter ideology on them. It also necessarily involves recognition that a person’s intent and purpose in acting as they do is of paramount and particular importance in understanding any activity they engage in. These considerations are of significantly less importance for people who can be described as new individualists, because (at least in public activities) the sovereign organizations they are a part of, such as the federal and state governments, dictates the general form of their actions and defines their motivations for them.

            The unchecked propagation of men and women throughout the U.S. who can be described as new individualists is particularly relevant to understanding tax evasion. This is because to the majority of the people in this country who are conceptually unable to imagine that men and women are able to act in an independent and self-directed manner, anyone who actually does so will be judged from the standpoint that they weren’t acting independently at all, but were deliberately acting in contravention of what is approved by an organization - such as the government. In other words, honest and sincere actions by the genuine individuals in American society that may on the surface appear to be contrary to political laws, will be incorrectly interpreted by those associated with the government - as well as everyone who can be called a new individualist - as defiance of its legal mandates. Some of these incorrectly interpreted legal violations may involve tax laws. Obviously then, any reduction in respect for the opinions and self-chosen actions of individual Americans can have profound legal consequences for anyone who doesn’t at least publicly assume the behavior of a new individualist.

            The rejection of contrary points of view - simply because they are different from those endorsed by organizational processes - is an extremely dangerous practice to percolate throughout society. It is a natural part of life for people to adhere to dissimilar ideas relating to the conduct of their life that have nothing to do with the influence of others. There is nothing inherently sinister, evil or destructive about thinking, believing or acting differently than others. Such differences are usually healthy and help to diversify and strengthen society as a whole. If a man or woman is a Mormon or Jewish, engaging in their religious practices does not have anything inherently to do with someone else who professes to be a Catholic or an Agnostic. If someone goes about the business of living their life in accordance with their personally held and cherished philosophical ideas and religious beliefs, it cannot be used as evidence that they are engaging in deliberate subterfuge of the religious beliefs and philosophical ideas held by others.

            For example, Seventh Day Adventists don’t abstain from working on Saturday to antagonize Protestants or undermine their faith, but because it is an innate part of their religious principles. It is just as certain they aren’t engaged in guerrilla warfare against Muslims or Baptists or Atheists by not working on Saturday. It is a peaceful and societally harmless expression of their religious beliefs, in the same way that eating kosher food is a socially and personally nondestructive religious practice of Jews. There is nothing unusual about people individually or in groups engaging in non-physically destructive everyday activities that are different than what an observer is used to seeing, or would normally do him or herself. Those innocent activities most definitely aren’t being “done with a bad purpose or with an evil motive.” [15]

            This emphasizes that often times what may superficially appear to be one thing, is in fact quite another. Such as when someone drives past a gas station and stops at one further away, it can’t be assumed that the driver overtly rejected the gas station that he drove past. That may be the case, but then again it very possibly isn’t. Just as with buying a loaf of white bread, the reasons are buried in the mind of the driver, and his or her actions are the result of an innumerable number of personal circumstances that can’t be ascertained from merely observing what they have done. It might be an expression of the routine of their life, but even if it isn’t an everyday occurrence for the person, it may nonetheless be recognizable as consistent with how they live. However, the mere suggestion a person’s mental state is not an indispensable element in understanding his or her actions is nothing less than an attempt to deny that human beings possess the life animating power of free will. Yet that denial is what underlies the world view of the new individualists in control of political life and all the major public institutions in the U.S.

IV

The Nature of Tax Evasion and False Prosecutions

            On the federal level, tax evasion is defined as the willful attempt “in any manner to evade or defeat any tax imposed by this title or the payment thereof.” [16] Tax evasion typically involves three primary elements: that someone was required to pay money in taxes; that they didn’t do it; and that their failure to do so was willfully “done with a bad purpose or with an evil motive,” and without a “good-faith belief” in the lawfulness of their actions. [17] Consequently, to engage in tax evasion, a man or woman must engage in the deliberate evasion of a consciously and voluntarily accepted legal financial obligation. [18] This is specifically recognized by the fact that to be convicted of tax evasion, the government must prove beyond a reasonable doubt that someone took specific actions to evade paying money to the government that he or she believed to be a valid debt owed to it. [19] Willfulness of thought and deliberateness of action are symbiotic twins that form the core of tax evasion. There must be perfect harmony between them. Furthermore, tax evasion is based on the presupposition that the intentions of people are knowable, which has been pointed out is questionable in even the simplest of situations. [20]

            Engaging in a specific action or pattern of actions does not in and of itself constitute a violation of tax related laws. [21] Likewise, the mere nonpayment of taxes that someone is alleged to owe doesn’t necessarily provide specific evidence of tax evasion, only the nonpayment of a debt. [22] Furthermore, the thoughts, intentions, and purpose of any action that can be superficially construed as tax evasion cannot be ascertained from the mere observance and recording of one’s actions - because engaging in an activity is not in and of itself tax evasion. [23]

            Figuratively speaking, in spite of the fact that an activity may look, taste and smell like tax evasion – it isn’t. This is because the appearance of an activity doesn’t legally define that activity as tax evasion. An example of this is that two people can engage in the exact same financial activity that may arouse the scrutiny of government monitors, and they can do so at the same time, and even in concert with one another, yet neither, or maybe only one of them may be committing tax evasion. This seeming incongruity is more than a very real possibility, because only one of them may have the requisite mental state necessary to constitute the offense of tax evasion. For any number of religious, philosophical and/or legal reasons, the other man or woman simply doesn’t possess the mental state of intent and purpose required to constitute tax evasion.

            There are variants of two forces that can underlie a person’s actions: internal and external influences. While the actions of people are based on external and internal intentions and purposes, the concept of willfulness establishes a line of demarcation defining whether a suspected activity actually involves tax evasion. External conditions can influence a person to financially act in ways that may cursorily appear suspicious, but which have nothing to do with tax evasion. Some of the external motivations of suspected tax law violations can be identified as a desire to protect one’s assets by establishing a trust as an estate planning device; financially arranging for the college education of one’s children or financial security of one’s family; assisting a friend or relative with a loan; protecting newly acquired assets from a vindictive ex-wife; or setting up a corporation or limited liability company to protect one’s business enterprise from specious lawsuits.

            In contrast, internal influences are those which result in someone perhaps running afoul of the appearance of tax evasion by living their life in accordance with their guiding principles. That is, internal influences and purposes of action are natural expressions of a person’s value and belief system that don’t vary with the pressures imposed by the outer world. Such actions are internal in origin, and are not external responses to outside stimuli. These can include fundamental disagreement, based on one’s religious and/or philosophical values with specific or general public policies.

            Whether based on external or internal influences (or a combination of the two) when someone is suspected of engaging in activities that have the possible appearance of violating the tax evasion statute, an actual violation is determined by whether the person crossed the line marking the parameters of “willfulness.” However, it is almost a logical impossibility for a person acting on internal influences to be construed to have acted with criminal “willfulness.” This is because a person’s “good-faith belief” that they were acting within the parameters of the law - which negates “willfulness” - doesn’t have to be objectively reasonable or even seemingly rational to any particular observer. [24] It is purely subjective. In common terms, the apparent absurdness of a person’s beliefs doesn’t make them a tax criminal. It may make what they do appear to some people as odd, different, or unusual, i.e., something they wouldn’t do, but a person’s level of eccentricity is not evidence he or she is a criminal engaging in tax evasion. Furthermore, when viewed from the perspective of their underlying intentions and purpose, the actions of those acting on the basis of external influences typically lacks the criminal “willfulness” necessary to constitute tax evasion.

            Whether resulting from internal or external influences, seemingly incriminatory appearing actions have no relationship to tax evasion when they lack the essential element of criminal “willfulness.”

            Yet, it is well known that the portion of an iceberg that can be seen above the surface is only a very small part of the whole iceberg. Similarly, an action is only the visible part of a story that isn’t anywhere near complete without an understanding of the unseen influences and purposes behind it. However, discounting the idea that people can be independently influenced – which new individualists would automatically do - necessarily alters the substance of what can superficially appear and be considered by an observer to be tax evasion. If internal and external influences are effectively eliminated from the equation of tax evasion by the non-recognition that a person can think and act outside the approved bounds of thought and action proscribed by an organization such as the government - then the element of “willfulness” and the individuality of spirit expressed by it, has been eliminated in fact while retained in name.

            This de facto elimination of “willfulness” as an element needing to be proved by the government can have profound consequences in a tax evasion prosecution. Not only because it makes the conviction of an innocent person likely, but a criminal prosecution based on an alleged violation of poorly defined and vague tax laws of questionable applicability is one of the most convenient and effective tools of ideological, cultural, religious and political control available to government in the United States. Politically inspired prosecutions have long relied on specious allegations of tax evasion. In Spies v. United States (1943) the Supreme Court recognized the center stage that tax evasion takes in the IRS’s arsenal of weapons it can wield against Americans: “Section 7201 is not an obscure provision; it is the principal enforcement provision of the I.R.C., “the capstone of a system of sanctions which singly or in combination were calculated to induce prompt and forthright fulfillment of every duty under the income tax law and to provide a penalty suitable to every degree of delinquency.”” [25] A conviction for an alleged criminal violation is much easier to obtain if the essential element of willfulness - and the personal influences and purpose inherent in its determination - can be neutralized while maintaining the public façade it is being respected. The greater the degree that standardized forms of thought and behavior acceptable to the government are exhibited by a large segment of the general population, the easier it is for prosecutions to be successful of innocent activities that are only made to appear to be criminal. Consequently, any widespread disbelief that can be cultivated against both the veracity of ideas that may be considered contrary to those endorsed by the government, and the sincerity of those who express them, is most helpful to the cause of successfully prosecuting people for politically defined offenses such as tax evasion. [26]

            In this regard, the use of debate tactics intended to strengthen the appearance of one’s arguments by keeping one’s opponent off-balance, are also highly effective in the courtroom melodrama of a criminal tax prosecution. Government prosecutors accomplish this in a tax evasion case by placing relatively little emphasis on the issue of intent and purpose while trying to overwhelm the sensibilities of the jurors with the physical details of what the accused defendant has allegedly done. These arguments are in conjunction with portraying a defendant as a bad person deserving to be convicted. This tactic is accomplished with considerable help from the manner in which the judge conducts the trial: particularly evidentiary rulings related to the alleged physical and testimonial evidence the government is permitted to use, such as “bad character” evidence.

            Federal Rules of Evidence 403 and 404(b) are intended to prevent the use of “bad character” evidence with little probative value, i.e., which doesn’t directly relate to the charge(s) against a defendant. The purpose of this restriction is so a defendant won’t be wrongly convicted on the basis of the government’s characterization of him or her as a bad person, when there is little or no actual evidence the person committed a crime. Allowing the jury to consider information that paints a defendant as a “bad character” allows the prosecutor present a case to the jury of, ‘convict the defendant because the government doesn’t like him or her, and so you jurors shouldn’t either.’ This is a powerful tactic because the prosecution’s primary strength in tax evasion cases is presenting apparently incriminating facts that on their face may allude to the possible appearance of tax evasion. That tactic is powerfully supported by the government’ portrayal of a defendant’ personality facets, beliefs or attitudes as making him or her deserving to be convicted. In plain language, permitting the government wide latitude in using information that can paint a defendant as a “bad person” allows the prosecutor to cover up the lack of actual evidence the defendant committed tax evasion by using the age old tactic of simply smearing him or her.

            Basing a prosecution on the false premise that tax evasion is primarily determined by a person’s physical actions or personality quirks is the perfect strategy for prosecutors skilled in manipulating and deceiving a jury composed entirely, or predominately with people identifiable as either new individualists or other men and women unduly susceptible to the influence of an authority figure. Possessing minds as malleable as Play Dough, those people can effortlessly be fooled into ignoring or not giving due consideration to a defendant’s deep seated inner mental processes that underlie the crucial and very personal element of willfulness. [27]

            This underscores the danger posed to independent thinking and acting Americans by the overwhelming percentage of people in the U.S. that willingly kowtow to arbitrary, but legitimate appearing authority. Psychologist Stanley Milgram’s experiments at Yale University provided solid confirmation of the tendency of a large majority of Americans to exhibit a truckling mentality. In The Inhumanity of Government Bureaucracies, this author wrote:

“Most people exhibit mindless obedience to authority. Professor Stanley Milgram’s experiments almost forty years ago at Yale University revealed that two-thirds of a representative sampling of Americans would inflict life-threatening high-voltage electric shocks to someone they knew was innocent of any wrongdoing, even when that person was screaming and begging for mercy (Milgram 1975; see also, Kelman and Lawrence 1972). Even more disturbing, this large percentage of Americans would inflict pain on innocent people willingly and even enthusiastically based on the mere request of someone whose authority was established by nothing more than his wearing the white coat of a laboratory technician and speaking in a firm voice. These people readily substitute obedience to authority figures for the dictates of their personal moral code. They have been called “sleepers” because they can slip into and out of a state of moral blindness on command (Bauman 1989, 167).” [28]

 

            Professor Philip Zimbardo’s 1971 Stanford Prison Experiment also confirmed the nature of American’s to assume a visible drone like servitude to authority figures. [29] The dramatic movie, Das Experiment, released in theaters in the fall of 2002, was loosely based on the findings of Professor Zimbardo’s experiment.

            As common as the follower mentality of Americans was nearly four decades ago, it is even more prevalent today, since the societal and political factors encouraging the growth of new individualist like characteristics in adults and children is unchecked. The groveling of Americans to authority figures is true of both new individualists, and people that simply don’t have the gumption to stand up for what they may inwardly believe to be right. [30] The prevalence of this attitude in society and amongst jurors helps facilitate the misuse of the law enforcement process against innocent men and women, by enabling successful but unwarranted criminal prosecutions for tax evasion and other alleged crimes. The limiting parameters of an obedient person’s perspective of the world makes them particularly susceptible to becoming active participants in an unjust prosecution, and in the larger sense, an institutionalized system of evil. [31]

                Men and women on a jury who don’t have a predisposition to condemn people that appear to be different than themselves in their beliefs and attitudes, and who have a healthy skepticism of people that aren’t as tolerant as they are, have a partial immunity to carefully crafted government arguments intended to divert their attention from the actual issues they are responsible for judging. These men and women understand that their function as jurors is not to rubber stamp the label of criminal on everyone the government accuses of being a criminal, like beef processed on an assembly line in a slaughter house. Rather, their role as conscientious members of society is to utilize their experience, knowledge, judgment, and unique perspective of life in assessing the entire sphere of criminal elements necessary to convict someone whose actions and intentions they are standing in judgment of.

            Irrespective of the specific and particular claims of intent and purpose made against a defendant in a tax evasion case, their state of mind is an essential determinant of whether they actually engaged in the criminal activity they are accused of. Someone can’t legitimately be accused of deliberate disrespect for, disobedience of, and/or noncompliance with a known legal obligation merely on the basis that they did one thing instead of another. It would be foolish to even propose that the failure of a Protestant to follow the specific practices of the Islamic religion - such as bowing to Mecca - is evidence that he or she is protesting against it, or is attempting to resist its acceptance by others, or is acting to undermine the spiritual foundation of Muslims. The person is most likely doing nothing more than expressing his or her personal preferences while maintaining the integrity of what they believe in. Tolerance can be among the most important of all social virtues. Widespread denial or disregard of this almost self-evident aspect of human social relations can have personally destructive consequences for people whose uniqueness is ignored or discounted by those in governmental positions of power. The zenith of such evasions of the truth is reached when the innocent actions of a man or woman are wrongly viewed as criminal and the person is targeted for prosecution.

            It cannot be considered just, moral, or righteous in any sense of the word, to prosecute (or more accurately persecute) a person for peacefully engaging in activities that when considered from a perspective of tolerance, can simply and honestly be characterized as different. Yet societal conditions in the U.S. make it all too easy for prosecutions based on an accusation of tax evasion and other laws to be used as a subterfugal way of attacking and attempting to suppress, or even decimate lifestyles and alternate ways of thinking that may be disapproved of by those in governmental positions of power.

V

Conclusion

            Describing an innocent activity as tax evasion doesn’t make it true anymore than calling a black dress red changes its color. However, the ability of an inaccurate first impression to color subsequent opinions is well known. Once the idea is implanted in someone’s mind that a person has done something nefarious, even though the person hasn’t, then insofar as they are concerned the person has done something wrong. The malleability of a person’s perceptions is a quirk of human nature that is exploited every time the government takes advantage of the susceptibility of people to suggestion by basing a tax prosecution on the illusion it has occurred, when in fact it hasn’t. [32] In the same way a skilled illusionist depends on his ability to deceive an audience for the success of a stunt, the government relies on the sleight of characterizing innocent actions and intentions as villainous in order to manufacture a false prosecution out of thin air without respect or regard for their innocent mental origin. [33] A courtroom is then used as the backdrop for the presentation of an elaborate charade by the government identical in its intent to an illusionist’s performance that is carefully crafted to fool the audience: the latter works to deceive a paying audience, while the former deceives the judge, the jurors, courtroom observers, reporters and the general public. 

            The extent of this charade is hinted at by the fact cases of alleged tax evasion are such gross misapplications and misuses of the criminal law that a person’s actions may merely involve tax avoidance. This is significant because federal courts have unequivocally acknowledged the legality of tax avoidance numerous times. The Supreme Court, for example, recognized in Gregory vs. Helvering (1935), “The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted.” [34] That is the law of the land. The “good-faith intent” to engage in tax avoidance negates the essential tax evasion element of “willfulness:” i.e., a person cannot commit tax evasion while engaging in what they subjectively believe is a legal activity, and every business and individual in American engages in tax avoidance to one degree or another. [35] The conclusions in a recent study are indicative of how pervasive tax avoidance is: U.S. companies avoided at least $53 billion in U.S. taxes in 2001 by selling products to their foreign subsidiaries at cut-rate prices, which were then sold to the public of those countries at regular prices. This perfectly legal business practice deflates the profits of the company in the U.S. were taxes are extremely high, and raises it in the foreign countries where taxes are lower. The same report found this legal tax avoidance business practice saved U.S. companies at least $45 billion in 2000 and $35.7 billion in 1999. [36] This tax avoidance practice has a positive effect for the company’s financial solvency, and thus for its stockholders.

            However, in spite of their legality and beneficent effect on society, innocent tax avoidance strategies can easily be woven into a tax evasion prosecution by an unscrupulous prosecutor. Even more unjust is the alleged criminal action of an accused may not even involve what can be described as tax avoidance, since they may be unrelated to any tax consideration whatsoever. [37] This typically occurs when the tax laws are used as a weapon of political reprisal, as a prosecutorial pressure tactic to coerce a guilty plea to other charges, or if someone has politically contrary opinions, or unpopular religious or philosophical ideas. It is well known, for example, that President Richard Nixon used the IRS to harass his political opponents. [38] The use of the IRS as a harassment device began long before Nixon however, and it continues to the present day. The 2002 trial of Ohio Congressman James Traficant is a prime example. He was prosecuted for tax evasion after openly criticizing the FBI, the IRS, and expressing support for a revamping of the federal grand jury into an independent investigative body, from its current role as a ceremonial rubber stamp for whatever the U.S. Department of Justice presents for its approval. [39] Such prosecutions may attempt to create the illusion of tax evasion from someone’s suspected behavior by obscuring or ignoring their internal motivations that don’t constitute willful behavior, or mischaracterizing the alleged tax evasive events themselves.

            The elusive and political nature of tax law enforcement is starkly revealed by that fact that in a nation of 285 million people, the odds of any one person being convicted of federal tax evasion is less than miniscule. In 2001 it was about one person for every one million five hundred thousand Americans. [40] This proportionately translates into two tax evasion prosecution a year in Los Angeles, the countries second largest city, and one every two years in San Francisco. Put another way, the odds of any given person being murdered, the rarest of all major crimes, are eighty three times greater than that they will be prosecuted and convicted of tax evasion by the federal government. [41] Another example that the reader may more readily relate to, is that the odds of a person dying from an adverse reaction to a doctor prescribed drug while spending a few days in the hospital are over six hundred fifteen times more likely than that same person will be prosecuted for tax evasion in any given year. [42]

            From the extraordinary judiciousness of their use, it is obvious that the criminal tax laws are only directed against carefully targeted men and women. This observation is supported by the fact that it is known virtually every adult and every business in the United States openly flouts the tax evasion statute. The prevalence of this behavior can be illustrated by a common occurrence. Every time a tip is left at a coffee shop, a restaurant, a beauty salon or any other service business, the tipper is most likely facilitating what by the letter of the law can be characterized as tax evasion. It is well known that service workers do not report all of their receipts. A tip is neither left by accident, nor is it accidentally not reported. Yet, when was the last time the reader heard of a waitress at Denny’s being prosecuted for tax evasion? Never? Likewise, has the reader ever heard of a person being prosecuted for leaving a tip that wasn’t reported? The answer is also likely to be the same: never.

            That the criminal tax laws can’t be divorced from the political conditions under which they are enforced and selectively applied is emphasized by the tens of millions of ordinary people and businesses that openly engage in, and routinely facilitate tax evasion every day without being investigated, much less prosecuted for tax evasion. [43] It is only in highly specialized circumstances that a person in the United States is prosecuted for tax evasion, and given the highly selective application of the tax laws to situations that typically don’t even involve tax evasion, it is likely that many tax related prosecutions are not intended to punish criminal wrongdoing. Instead, tax prosecutions in this country are used identically to how they were used in Soviet Russia under Stalin et al. They are a form of legal vendetta to punish people that get politically out of line, or as a terror tactic to control a restless population. [44]

            All of the foregoing emphasizes the overwhelming importance of recognizing the role that a lack of willfulness plays in overcoming a phantasmic tax evasion prosecution. If you can make your way through the fog and deceptions of a prosecution based on the use of smoke and mirrors intended to obscure the nonexistence of tax evasion, the truth is often times waiting on the other side to reveal the innocence of a person victimized by a wrongful prosecution.

 

END NOTES



[1] This is an undated and revised version of an essay by the same title published in, The Ethics of Tax Evasion, ed. Professor Robert W. McGee, Dumont Inst for Public Policy, South Orange, NJ, July 1998, ISBN: 0964879484, 405 pages, hardcover. This essay was included in the book’s section titled, Philosophical Approaches.

[2] While as little as twenty years ago it was considered a flight of fantasy by those considered to be a part of the conspiracy fringe of American society, the active centralization of economic, political, and ideological interests worldwide is now such an accepted fact of life that it is publicized by literally all mainstream print and broadcast media outlets. It is summarized under the broad heading of the New World Order. For example, in a 1997 speech at Harvard University, U. S. Secretary of State Madeleine Albright confirmed that the official policy of the U. S. government is to promote the centralization of political ideas in order to create a New World Order based on global capitalism. The ostensible purpose of this policy is to solve the world’s economic and human problems. Source: Albright Sees New World Order, The Oregonian, Portland, Oregon, June 6, 1997, p. A5. See also, The ’63 Coup and its Fall-out, L. Fletcher Prouty, The Portland Free Press, Portland, Oregon, July-October, 1997, p. 19.

[3] The Stepford Wives was a film released in 1974 about how in a town called Stepford, independently acting married women - and the individual animating life force of their personalities - were replaced by androids that mimicked their appearance and exhibited a bland conformity of thought and action, while being slavishly obedient to every command of their masters/husbands.

[4]  The New Individualists: The Generation After the Organization Man, Paul Leinberger and Bruce Tucker, HarperCollins, New York, 1991, pp. 16-18. It should be noted that this idea implicitly undermines existing fundamental social structures of American society, such as the family, by a perceptible transfer of allegiance and loyalty to artificially created politically related organizations. The same process occurred in China when the Communists under Mao Tse-tung seized political control. For thousands of years Chinese life had revolved around allegiance and loyalty to one’s family. The Communists systematically implemented policies to weaken family bonds in order to facilitate an orchestrated transfer of allegiance and loyalty to the centralized Communist State.

 

One notable aspect of the automaton like thought processes of new individualists is their near absence of critical thinking skills, since that is the one mental characteristic that would undermine their adoption of the new individualist physical and mental persona.

[5] The New American Ideology, George C. Lodge, Alfred A. Knopf, New York, 1975, pp. 15-21. There are five ideas forming the core of what professor Lodge, a Harvard University Business School professor, calls the New American Ideology. Those five ideas are consistent with the idea of the “new individualists,” are: Communitarianism; Rights of Membership; Community Need; State as Planner and Coordinator; and Holism. Professor Lodge envisions that these ideas will replace the historical American ideology of: Individualism; Property Rights; Competition; the Limited State; and Scientific Specialization. Mr. Lodge’s 1995 book, Managing Globalization in the Age of Interdependence, expands on his assertion that the traditional American concept of individualism is dead.

[6] The New Individualists at pp. 16-17.

[7] Id. at pp. 16-17.

[8] Perhaps the most visible characteristic of what are referred to as the “new individualists” is that they are considered to be a cog in the wheel of the system they are a part of. This is precisely the attitude that leads to the most base of human atrocities, because it tends to neutralize the influence of the human conscience of those who ascribe to it. The extensive documentation available on the Germans under the National Socialists reveals that they could quite accurately have been described as “new individualists,” in the same way that a majority of people in the United States can be described today. See for example, The New Radicalism in America [1889-1963]: The Intellectual as a Social Type, Christopher Lasch, Alfred A. Knopf, New York, 1965, p. 329. The person’s immersion into a system glorifying the State or other organization at the expense of that individual’s defining animating life force, creates an atmosphere of personal non-responsibility and conscienceless activity described in books about the Nazi era such as: Ordinary People and Extraordinary Evil: A Report on the Beguilings of Evil, Fred E. Katz, State University of New York Press (SUNY), Albany, New York, 1993; Hitler's Willing Executioners: Ordinary Germans and the Holocaust, Daniel Goldhagen, Alfred A. Knopf, New York, 1996; and Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland, Christopher R. Browning, HarperCollins Publishers, New York, 1993.

[9] The concept that the State or another organization (such as a church) is the sovereign entity in society isn’t a new idea; it goes back thousands of years, at least to Plato. Men, women and children described as “new individualists” are distinguished by a process of self-identification that doesn’t include the mainstream American concept of individualism based on personal autonomy and self-directedness.

[10] See e.g., The Edge of the Abyss, Alfred Noyes, E. P. Dutton and Company, Inc., New York, 1942, p. 149. In this book, Mr. Noyes describes the process in both England and the United States whereby many intellectuals abandoned the torch of promoting individuality and clearly defined moral principles, to subtly promote the cultivation of the mental attributes in men, women and children that are now used to identify them as being among the “new individualists.” (see especially pp. 77-83). It is worth noting that Alexis de Tocqueville observed during his visit to the United States in 1831 - and which he wrote about in his classic book Democracy in America – that American’s were much less inclined to be independent in mind and action than were people in Europe. This continues to the present day. It is widely recognized that there is much less diversity of political and philosophical thought in the U.S. than in European countries. In other words, the idea of rugged American individualism is a myth that has been a carefully cultivated over several centuries. People in the U.S. are actually much more susceptible by surrendering their autonomy as a human being and accepting the concept of the new individualists, and becoming one of them, than are people living in more ideologically diverse cultures. In their own way enormous numbers of people in the U.S. march in ideological lockstep as dutifully as did people in Germany under the political leadership of the Nazis.

[11] There are at least a couple of major factors contributing to the growth of those who are euphemistically referred to as the “new individualists.” It is more than a vague possibility that the alteration (some might prefer to call it the dilution) of the human gene pool is an integral part of the social welfare programs established and pursued by federal and state governments in the United States. This phenomena is coupled with the teachings of government schools and exposure of both adults and children alike to the incessant barrage of propaganda like popular entertainment programs and the print and broadcast news media, all of which emphasis attitudes of subservience to governmental authorities. The inducement of an almost zombified mental condition that affects the way that children perceive, understand, and interpret information has been dealt with in theory in such books as: Compelling Belief: The Culture of American Schooling, Stephen Arons, McGraw-Hill Book Company, N. Y., 1983; and Separating School and State: How to Liberate America’s Families, Sheldon Richman, The Future of Freedom Foundation, 1995. Highly refined propaganda techniques are likewise being used in the print and broadcast news and entertainment mediums to induce and reinforce a somnambulistic mental state in both adults and children. This is not accidental. The federal government employees over 40,000 public relations people writing press releases that either directly or in regurgitated form comprise 75% plus of the “hard national news” reported in daily U.S. newspapers. State and local government press release writers compound the flood of government generated propaganda pawned off on television, radio, and in magazines and newspapers as “news.” Just two books of many available dealing with this not altogether new phenomenon, are: Total Propaganda: From Mass Culture to Popular Culture, Alex Edelstein, Lawrence Erlbaum Associates, Publishers, Mahwah, N. J., 1997; and The Rape of the Masses: The Psychology of Totalitarian Political Propaganda, Serge Chakotin, Alliance Book Corporation, N. Y., 1940.

[12] The New Individualists at p. 16

[13] See e.g., Unsound Constitution, George P. Fletcher, The New Republic, June 23, 1997, pp. 14-18. It is also noteworthy that since the 1790s the dominate school of thought by those within the governmental structure is that the existence of the United States is separate from, and not dependant on the people that live within the U.S.

[14] In 1616 Galileo was formally warned by the Catholic Church that his astronomical ideas sympathetic with Copernicus’ theory that the Earth revolved around the Sun were contrary to Church teachings. In April 1633 he was imprisoned for two weeks while being interrogated before the Inquisition about his celestial opinions. Galileo agreed to plead guilty to a charge less serious than heresy in exchange for a more lenient sentence. Sentenced to an indefinite term of imprisonment for having “held and taught” the Copernican doctrine, and he was permitted to spend the last eight years of his life under house arrest after recanting what he believed to be true. See e.g., Galileo, Encyclopaedia Britannica.

 

                This point is also illustrated by quoting from the dissent of Justice Blackmun to the Supreme Court’s ruling in Cheek v. U. S., 111 S. Ct. 604, 615 (1991): “That being so, it is incomprehensible to me how, in this day, more than 70 years after the institution of our present federal income tax system with the passage of the Income Tax Act of 1913, 38 Stat. 166, any taxpayer of competent mentality can assert as his defense to charges of statutory willfulness the proposition that the wage he receives for his labor is not income, irrespective of a cult that says otherwise and advises the gullible to resist income tax collections. One might note in passing that this particular taxpayer, after all, was a licensed pilot for one of our major commercial airlines; he presumably was a person of at least minimum intellectual competence.” The reader will note that Justice Blackmun found it “incomprehensible” that someone could have an opinion different from his, and not only questions the mental competency, but the intellectual competence of the defendant Cheek, because he ascribed to ideas contrary to Justice Blackmun. Because he couldn’t conceive that defendant Cheek actually believed in the ideas that he did in fact believe in to such a degree that he was willing to be imprisoned for adhering to them, Justice Blackmun voted to affirm his conviction and thereby negate the necessity for the State to prove he acted willfully. Justice Blackmun’s dissent is an excellent example of the mentality possessed by those described as “new individualists.” What many people would call honest disagreement, they consider a sign of someone’s insincerity, deliberate recalcitrance and mental incompetency.

[15] Cheek v. U. S., 111 S. Ct. 604 at 610-611 (1991)

[16] Title 26, Section 7201 of the United States Code, quoted in part.

[17] Cheek v. U. S., 111 S. Ct. at 610-611 (1991)

[18] The reason I have chosen the wording “consciously and voluntarily accepted legal financial obligation” is that the U. S. Supreme Court stated in the Cheek decision (Cheek v. U. S., 111 S. Ct. 604, 610 (1991)) that someone can only be adjudged to have acted willfully if he or she “voluntarily and intentionally violated” a known legal duty. It is a logical impossibility for someone to voluntarily fail to do that which they haven’t voluntarily agreed to do in the first place. If someone stops you on the street and demands your wallet and you refuse to provide them with it, you haven’t voluntarily failed to fulfill a legal obligation, because one didn’t exist in the first place. An everyday example of a consciously and voluntarily accepted legal financial obligation would be walking into a grocery store, consciously picking up a loaf of bread, deliberately walking to the checkout counter and voluntarily handing the amount of the bread’s purchase price to the grocery clerk. If that person had walked out of the store with the bread under those same factual circumstances without having paid for it, they would have “voluntarily and intentionally violated” a known legal duty and committed the crime known as shop lifting.

[19] Cheek v. U. S., 111 S. Ct. at 610-611 (1991)

[20] This can be true even when someone tells you - particularly in the context of a legal matter - what their intentions were for doing something. This is the case because of the implicit threat of violence that permeates every encounter between an individual person and any government representative. The psychological factors involved in all such situations necessarily cast doubt on the voluntariness or actual veracity of anything that someone reveals to a government agent or representative. A man or women may conceal their genuine thoughts or refrain from emphasizing the truth in order to appease the government representative(s) they are confronted with, by telling them what they want to hear. By doing this, they may hope to positively influence the degree to which the ever threatening violent weight of the government is brought to bear against them. A well known example of how this works in the real world, is that mandatory sentencing laws have given government prosecutors the power to “psychologically coerce” innocent men, women, and children to plead guilty to crimes they didn’t commit - in order to avoid the possibility of losing a trial and having a much harsher sentence imposed on them. [See e.g., Prosecutorial Lawlessness Is Its Real Name, Hans Sherrer, Justice Denied Magazine, Vol. 1, Issue 6, at: http://forejustice.org/wc/prosecutorial_lawlessness_v1_i6.htm; and, Prosecutors Are Master Framers, Hans Sherrer, Justice Denied Magazine, vol. 1, issue 9, at: http://forejustice.org/wc/prosecutors_are_master_framers_JD_v1_i9.htm] The mentally influencing factors involved in the phenomena of psychological coercion are well known as constructive force. For an enlightening discussion of the latent violence surrounding contacts between people and government representatives, see: Law’s Violence, ed. Austin Sarat and Thomas R. Kearns, The University of Michigan Press, Ann Arbor, Michigan, 1992, pp. 1-7. See also, Violence and the Word, Robert M. Cover, The Yale Law Journal, Vol. 95, No. 8, July, 1986, pp. 1601-1609.

[21] Ratzlaf v. U. S., 114 S. Ct. 655, 657 (1994) While the Ratzlaf case didn’t specifically have to do with “tax evasion,” the definition of willfulness applied by the U. S. Supreme Court in resolving the issues of “money laundering” it did involve, was similar to that used in tax evasion cases. At page 659, the Supreme Court provided an admonishment because, “The trial judge in Ratzlaf’s case, with the Ninth Circuit’s approbation, treated [Section] 5322(a)’s “willfulness” requirement essentially as surplusage - as words of no consequence.” See also, Cheek v. U. S. at 610. It should be noted that after the Ratzlaf case, in which the U. S. Supreme Court reaffirmed that mental purpose and motive are an integral aspect of willfulness, the U. S. Congress eliminated the willfulness provision of the money laundering laws when it enacted the Money Laundering Suppression Act in August, 1994.

[22] Haas v. Internal Revenue Service, 48 F.3d 1153, 1155, 1160-1161 (11th Cir. 1995)

[23] Cheek v. U. S., 111 S. Ct. at 610 (1991)

[24] Id. at 610-611

[25] Spies v. United States, 317 U. S. 492, 497 (1943), cited in Sansone v. U. S. 380 U. S. 343, 350-351 (1965)

[26] The phrase politically defined offense is used to describe tax evasion, because it is what is known as a malum prohibitum (wrong because they are prohibited), or an artificial man made “regulatory” offense or “quasi crime.” These are in contrast with malum in se (wrong in themselves), or a natural crimes such as robbery, rape, murder and arson. The man made nature of tax evasion has been recognized by the United States Supreme Court in such decisions as Cheek v. U. S., 111 S. Ct. 604, 609-610 (1991). A particularly clear explanation of malum prohibitum offenses was provided in The Phoenix Solution, (by Vincent T. Bugliosi, Dove Books, Beverly Hills, CA, 1996, p. 230): “They are “wrong” only because they are prohibited by statute, and for no other reason; i.e., you do need a law to tell you they are wrong. Louis XIV of France was once asked by a puzzled member of his court why a particular act was against the law and he replied, “It’s against the law because I want it to be against the law.”” A modern day King or the leaders of a popularly elected government can mimic that attitude today by stating: ‘Tax evasion is against the law because I want it to be against the law.’ That is fact not fancy, because the federal tax evasion was created out of thin air, and it could just as quickly be repealed and evaporate from the law books into thin air.

 

That idea is not a flight of fancy. It is not uncommon for malum prohibitum government manufactured crimes to be reinstated to their prior status of not being considered criminal. Two examples are tens of millions of Americans are old enough to have been alive when the mere engagement in homosexuality (amongst consenting adults behind closed doors) was a crime in many jurisdictions. In today’s political climate, anyone who proposed making homosexuality a crime would be publicly tarred and feathered. A similar example is the Supreme Court’s 1973 Roe v. Wade decision made a previously criminal activity, aborting fetuses, a legal activity. The criminal stigmatism has been removed from both homosexuality and abortion, and from the dominant political point of view, they are now considered lifestyle choices.

[27] The U. S. Supreme Court partially addressed this when it wrote in Cheek vs. U. S. at 611, “Knowledge and belief are characteristically questions for the fact finder, in this case the jury. Characterizing a particular belief as not objectively reasonable transforms the inquiry into a legal one and would prevent the jury from considering it. ... it is not contrary to common sense, let alone impossible, for a defendant to be ignorant of his duty based on an irrational belief that he has no duty, and forbidding the jury to consider evidence that might negate willfulness would raise a serious question under the Sixth Amendment’s jury trial provision.” It further stated at 612 that, ““[i]t is not the purpose of the law to penalize frank difference of opinion or innocent errors made despite the exercise of reasonable care.”

[28] The Inhumanity of Government Bureaucracies, Hans Sherrer, The Independent Review, Fall 2000, p. 249, 251. See also, Obedience To Authority, Stanley Milgram,  Harper & Row Publishers, N. Y., 1975.

[29] To read about Professor Zimbardo’s experiment go to the official website of the Stanford Prison Experiment at: http://www.prisonexp.org/. A video of the experiment is available for purchase. The experiment has never been repeated because of the legal and psychological implications of its participant’s realistic responses to being immersed in an artificial prison/jail environment.

[30] Jurors are often heard to say after voting to convict a person that they don’t believe the person is guilty, but they were kowtowed by the contrary opinion of other jurors into voting against their conscience and true opinion of the facts of the case. A very contemporary example of this phenomenon is that at least one of the jurors that voted to convict Ohio Congressman James Traficant in 2002 publicly stated only a few months later that he believes Traficant is innocent of all charges. Yet the atmosphere created by the judge in the courtroom and by his fellow jurors in the jury room induced him to vote guilty in spite of the failure of the federal government to prove Congressman Traficant committed any crime.

[31] See e.g., Ordinary People and Extraordinary Evil: A Report on the Beguilings of Evil, Fred E. Katz, State University of New York Press, Albany, New York, 1993, p. 49.

[32] This is also true of many civil tax proceedings where the burden of proof is on the person filing as the plaintiff against the IRS or a state tax agency.

[33] While the standard of willfulness used in tax evasion cases (affirmed by cases such as Cheek vs. U. S.) doesn’t specifically or explicitly recognize that someone can legitimately be motivated by their world-view to act in a manner contrary to that which is governmentally approved, it implicitly recognizes it. The U. S. Supreme Court has endorsed that it is relevant for the jury to consider an accused individual’s actions in the context of his or her ideas, knowledge and beliefs, even if they may not seem “objectively reasonable” to people not of a like mind. (Cheek vs. U. S. at 611-612). If an accused person did not act willfully based on their subjective understanding of the law, that person is innocent. This is almost a logically inevitable conclusion in light of the fundamental difference between the malum prohibitum nature of governmentally proscribed tax laws, and historical malum in se crimes such as murder and rape that are known and recognized on their face as crimes, even in the absence of any government law, statute, regulation or order prohibiting or punishing them. That is, since tax evasion is a law created out of thin air by the government, a person’s subjective understanding of how it dos or doesn’t apply to him or her in a particular situation is critical for determining whether the person had the requisite mental intent to violate the law.

[34] Gregory vs. Helvering 293 U.S. 465, 469 (1935)

[35] A person doesn’t have to even be engaging in tax avoidance to be prosecuted wrongly for tax evasion As noted elsewhere in this essay (see e.g., fn. 39),  the government can easily paint innocent and perfectly legal financially related activities that don’t have anything to do with tax avoidance as nefarious and criminal.

[36] “Price Fixing Overseas Alleged to Avoid Taxes,” Jim Abrams, Seattle Post-Intelligencer, November 12, 2002, p. C2. The study’s authors also noted that their estimates erred on the side of understating the amount of the savings to the companies by a significant amount.

[37] Tax avoidance involves arranging of one’s financial affairs in such a way as to reduce one’s tax liability to the minimum amount possible under the tax laws. Prosecutions for tax evasion don’t necessarily involve eager, but perfectly legal tax avoidance efforts, since tax avoidance, much less tax evasion, may not have been a specific consideration of an individual criminally charged with tax evasion. For example, a single man or woman with no heirs may have a trust created that has a library as the beneficiary, which then purchases a house or other assets, the ownership of which will be transferred to a library upon the person’s death. A prosecutor with a new individualist’s mentality can easily paint this noble act as being something only a scoundrel would do.

[38] While it is widely known that this occurred during Richard Nixon’s presidency, it didn’t begin or end with him. See for example, The American Police State: The Government Against The People (How the CIA, FBI, IRS, NSA and other agencies have spied on Americans during seven administrations), David Wise, Vintage Books, 1978. Politically and ideologically motivated criminal investigations and prosecutions continue to be common occurrences in the U. S.

[39] Congressman Traficant was also prosecuted for several other charges that “piggy backed” on the tax evasion charges against him. Piling on charges is not an unusual tactic in tax evasion prosecutions, since their “smear” effect helps to strengthen the illusion that the accused has been involved in something infamous.

[40] In 2001 there were 193 convictions in federal court for tax evasion. (See: TRAC’s website operated under the auspices of Syracuse University at: http://trac.syr.edu/tracirs/findings/01/criminal/district/us/usglaw01.html ) There were approximately 288.2 million people in U. S. on July 1, 2002. (Source: US Census Bureau Quick Facts at: http://quickfacts.census.gov/qfd/states/00000.html). On July 1, 2001 the population of the US was 284.8 million with a growth rate of 1.2%. 288.2 million / 193 = 1,493,000. In 2001 Los Angeles had a population of 3.6 million and San Francisco approx. 750,000.

[41] This 83 to 1 ratio is based on the fact that there were 15,980 deaths classified by the FBI as murders in 2001, (Source: Crime in the United States 2001, Federal Bureau of Investigation, U. S. Department of Justice), and in 2001 there were 193 federal convictions for tax evasion. See Id.

[42] See e.g., http://www.namiscc.org/News/2002/Summer/PerscriptionDrugSafety.htm. It is estimated that 119,000 people die in hospitals every year from an adverse reaction to a drug prescribed by their doctor. 119,000 deaths / 193 tax evasion prosecutions in 2001 = 617. USA Today published an article entitled, “Prescription Misuse Costs Nation Billions,” that reported prescription drug related problems cost an estimated $75.6 billion and cause 119,000 deaths yearly. That was in 1995, and nothing has been done to alleviate the situation, so it is at least as prevalent, and possibly much more so today.

[43] It should be noted that all tax evasion prosecutions (as are all criminal prosecutions) are selective in the sense that all potential prosecutions are subjected to a filtering process. All of the innumerable criminal prosecutions that the government can potentially initiate are analyzed and sifted through by a selection process. The selectively chosen cases that survive this process are earmarked for prosecution. This filtering process that determines who is and isn’t prosecuted, has been likened to a sieve. For an elaboration on this concept, see: “The Criminal Court as Organization and Communication System, Abraham S. Blumberg, in Criminal Justice: Law and Politics, ed. George F. Cole, pp. 87-291.

[44] In the context of how false tax evasion prosecutions are used in the U.S., it is significant that, “In the former Soviet state, totalitarianism for most citizens did not come from the KGB. The major tool for control over all citizens, like in America, came from fiscal crimes. ... As a result, just about anyone could be arrested at any time. While the probability of arrest was low because everyone was breaking laws, the sense of criminality was strong, casting a shadow of fear and paranoia over the land.” For Good and Evil: The Impact of Taxes on the Course of Civilization, Charles Adams, Madison Books, Lanham, Maryland, 1993, p. 384 (emphasis added to original).