Filing a Form 1040 is an “Attestation of Liability”

Form 1040Tax authorities and tax honesty advocates have been at odds for many years over whether filing a Form 1040 Individual Income Tax Return is voluntary or mandatory. The Service has jailed people for “failure to file.” Many who have studied the matter still believe there is a lawyerly bamboozle in involved. Why?  Because you can’t be forced to sign an affidavit of any kind. A tax return is an affidavit.

I’m not going to plunge any deeper into the voluntary/mandatory mud pit right now.  However, I want to examine a statement made by the IRS Chief Counsel concerning the validity of a tax returns with the signature statement changed.  It sheds a little light on the issue of whether filing is required or whether we are fooled into doing it.

Form 1040 Returns with Altered Jurats

Filers who have doubts about their liability for the tax have often filed returns where they have changed the “jurat.” The jurat is the little statement above the signature that says the signer is telling the truth “under penalties of perjury.”  The court’s have determined that if the alteration has the effect of negating the declaration, for example “Signed under Duress, Wages are not Taxable” then the return isn’t valid. The attachment essentially contradicts the sworn statement. (Schmitt v. U.S., 140 B.R. 571 (Bank W.D. Okl. 1992)

If the filer attaches a statement that is a protest, however, but does not negate the meaning of the jurat, then the return is valid. For example, one a filer who wrote “under protest” beneath his signature did not negate the jurat, and so had filed a valid return. ( See McCormick v. Comm’r, 94-1 U.S.T.C. ¶ 50,026 (E.D.N.Y. 1993) and Todd v. U.S., 849 F2d 365 (9th Cir. 1988)

Chief Counsel Memo 1998-053

The IRS Office of Chief Counsel used these cases to advise his minions in a Memo dated July 29, 1998 of what the Service considers valid and invalid tax returns. It is that Memo that has the statement about returns that I found so very curious in that it appears to confirm the voluntary nature of filing a return in most cases.

“In agreeing with the Service, the court pointed out that the voluntary nature of our tax system requires the Service to rely on a taxpayer’s self-assessment and on a taxpayer’s assurance that the figures supplied are true to the best of his or her knowledge. Id. Accordingly, the penalties of perjury statement has important significance in our tax system. The statement connects the taxpayer’s attestation of tax liability (by the signing of the statement) with the Service’s statutory ability to summarily assess the tax.” (emphasis added) CC Memo 1998-053, pg. 3

The Filing Requirement

The problem is that the filing statute only requires “any person made liable for any tax imposed by this title,” to file a return. But if signing a Form 1040 is indeed “the taxpayer’s attestation of liability” as the IRS Chief Counsel says above, then filers generally are not liable until they have actually declared themselves to be by filing.

They were not “made liable for any tax imposed by this title” they made themselves liable by their own declaration  under penalty of perjury.

The lack of a liability statute in the income tax portion of the Internal Revenue Code has long been known. Any mention of it before a federal judge, however, is clubbed down with the “frivolous” hammer. The Chief Counsel in Memo 1998-053 seems to confirm that no liability statute is necessary because filers declare themselves liable.

So filing voluntary or not? Civil comments welcome. Patriot or Progressive ranting, name calling, or whatever I in my sole discretion decide is trolling will not be approved.



Lysander Venible is the author of "On Your Own in Tax Court," a book about how to save your shirt in U.S. tax court. He has been engaged with the Service for over 10 years both administratively and in tax court.

If you have questions, topics or a situation you'd like to discuss, comment below or click the "About/Contact" tab above.

Lysander is not an attorney and it is not his intent to offer legal advice.

9 comments to Filing a Form 1040 is an “Attestation of Liability”

  • Jerry

    Your article did not answer the question, “Can someone be forced to sign an affidavit?” and If so forced, is that contract enforceable? The obvious answer is no and no, but how does one cause the IRS to observe and comply with that legal principle? Can you answer that? I was “assessed” civil penalties up to $44,000.00 possibly (they will not make a clear allegation) for withholding signatures and modifying jurats AFTER contacting IRS in a recorded call and asking them if they could legally force my signature and AFTER they, in that call, refused and failed to answer that question.
    What if I simply send a demand for IRS to disclose whether or not any law requires me to file, giving them 30 days to respond?
    PS.: Lysander, who are you, what are your affiliations (IRS?) and what are your full contacts?
    Thank you,

    • Lysander

      Affidavits must always be voluntary to be valid. That’s one of the ironies of current tax mythology. Our masters allege we MUST under threat of criminal penalty, file an affidavit about our “income.” This alone places the alleged affidavit on shaky legal ground. However, they go so far as to claim they can either alter the facts we state on our affidavit based on nothing but third party hearsay, and that they may even make one for us if we refuse. Such notions are foreign to our legal heritage.

      As to an assessment against of civil penalties against you, I’ve seen it done many times. The Service never says what exactly is being penalized. Never identify a “position.” Never meet their burden of proof. The courts back up their unlawful application of this penalty without question. See Lee, Crites, O’Brien, for examples.

      Substitutes for return are also fraudulent. The mechanism is too complex and well hidden to discuss here, but “substitutes for returns” for “1040 taxes” are a product of computer record falsification and manipulation of the Master File using the unguarded Non-Master File.

      Your idea about sending a simple disclosure of your revenues and demand for a determination of tax is a very interesting one. Many people I work with are doing just that with some very telling results. Once again, it’s too complex an issue to cover here, but contact me at lysandervenible at startmail dot com if you would like to discuss it further.

      As to your last question, my mailing address appears on this website. I am not affiliated with the IRS in any way except as a victim.

  • David Gornik

    One would think that a well-researched and objective reading of the plain language of the statute would be all that is needed to prevail in tax court. It’s hard for the referee to hear the whistle when he’s got his hands over his ears. Best Regards

    • Lysander

      One would indeed think that, David. The many ambiguities in the Code would be interpreted in favor of the taxpayer as well. The defined terms would have limited special meanings. The taking of property would require due process of law, sworn testimony, and legal warrants of distraint. The tax court needs none of that. The tax court has its collective hands clapped soundly over its ears and is making motorboat noises to make sure it doesn’t hear you if you suggest that you are not a slave and that there must be a law making you liable.

      Your comment is waiting for approval means I read them before anyone else, and approve, edit or disapprove them as I please. The tyranny of the webmaster.

    • joseph-alan

      If you choose to introduce a statute in an administrative tribunal such as U.S. Tax Court, you must do two specific things. 1. The statute you wish to introduce as evidence must be obtained from a national archive library and it must bear the seal of the archivist. This document will be printed on bond paper and it must be entered into evidence so that the “judge” and the opposing party has opportunity to examine it. 2. You must be present at court and read it into evidence. You must read it aloud in open court. The “judge” may try to interrupt you and shut you up. You must insist on your right to make a record. Ignore her and keep reading if you have to.

      • Lysander

        I notice you do not cite any authority for this theory. I would have to disagree, unless you can provide some authoritative source for it. Statutes and regulations are judicially noticed without their being read into the record. Which is not to say the court will follow them, or simply just ignore them, but you don’t have to read them into the record.

  • Jim Worrall

    Outstanding article Lysander.

    A corrupt system can’t be trusted to police itself. The courts are unlikely to provide significant relief from IRS tyranny.

    Only widespread and zealous demand for reform from the American public will result in meaningful change. Something akin to the Civil Rights movement.

  • PistolPackingPatriot

    I have had mixed success with Cracking the Code, from Pete Hendrickson’s Lost Horizons web site. I am convinced that if my tax situation wasn’t so unusual, I would be having complete success, every year. Don’t know if you are friends or enemies with Pete. If friends, maybe you’ll post this. I endorse his strategy. It opened my eyes, and unshackled me.

  • Mark Coney

    I sent numerous such inquiries, all demanding answers, before I stopped filing and paying 25 years ago. By heavily documenting my position with valid legal points and demands for clarification, this would be difficult for the IRS to defend in court. Every time for the next few years when IRS would send a nasty letter, I would reiterate my positions and demands, always getting no reply, which further strengthened my position. Finally when IRS sent a notice of levy to one of my clients which filed a 1099, I did a FOIA on the agent who signed it, found they had no authority to do any such thing, then had a lawyer send a letter on law firm letterhead that the agent would be sued under Sec. 7433 if the levy were not withdrawn and if they ever did any such thing again. Since then, not another peep out of IRS, and I run a business where clients file 1099’s in the hundreds of thousands of $. If one takes great care to establish their position, and defend it strongly, then you can win, or at a minimum back them down. They know their positions are indefensible, so if you can hit them hard enough, they fold. That’s my untaxed 2 cents.

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