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

Lysander

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.
Lysander

19 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,
    Jerry

    • 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.

  • Greg

    I find it hard to believe that anyone would file a Form 1040.

    As per 26 CFR 602.101 the correct form to be used for the personal income tax (1.1-1) is form 1545-0067. The OMB number on the Form 1040 is 1545-0074. Filing a Form 1040 to report personal income taxes would be a violation of federal regulations. I believe that to file some version of a Form 1040 would be considered fraud against the government. I do not believe that one can be compelled to commit such an act.

    Since none of the authorities cited by the IRS, to be in compliance with the Privacy Act of 1974, IRC 6001, 6011 and 6012(a) and their regulations, actually compel one to keep books or records or to file returns or statement, why would one file such a return?

    The IRS publishes delegations of authority. As an example, listed below is the delegation of authority issued by the Secretary which would empower those delegated to make a specific request for a tax return.
    1.2.43.33 (01-30-2012)

    Delegation Order 4-37 (Rev. 1) (formerly DO 4-37)
    1. Recordkeeping Requirement
    2. Authority: To require any person, by notice served them, to keep records reflecting whether or not the person is liable for tax.
    3. Delegated to: Team Managers (Large Business & International); Examination Group Managers (Small Business/Self-Employed); Technical Services Group Managers (Small Business/Self-Employed); Specialty Programs Group Managers (Small Business/Self-Employed); Campus Compliance Services Managers (Small Business/Self-Employed); Group Managers (Tax Exempt & Government Entities); and Examination Reporting Compliance Managers (Wage & Investment).
    4. Redelegation: This authority may not be re-delegated.
    5. Source of Authority: 26 IRC 6001; 26 CFR § 1.6001-1(d); 26 CFR § 53.6001-1(b); 26 CFR § 55.6001-1(b); 26 CFR § 156.6001-1(b).
    6. To the extent that the authority previously exercised consistent with this order may require ratification, it is hereby approved and ratified. This order supersedes Delegation Order 4-37.
    7. Signed: Steven T. Miller, Deputy Commissioner for Services and Enforcement

    As you can see this Delegation of Authority authorizes certain persons to require any person by, NOTICE SERVED UPON THEM, to keep records that would reflect whether or not such person is liable for a tax. If no such notice has been served then there can be no liability for a tax and no requirement to keep books or records or to file a return or statement.

    This delegation order is in keeping with the provisions of IRC §6001 which specifically states that if in the opinion of the Secretary it is necessary for someone to keep books or records or file returns or statements they will be served a notice by the Secretary.

    Based on the above delegation of authority, it does not appear that any requests to file a tax return can be made after the fact. A notice would have to be served prior to the year in question and said notice would have to instruct the individual to keep books or records. The books and records required by this notice are essential in making the determination as to whether a person is liable for a tax. If no notice is served and no records are kept then there would be no way to accurately determine if the individual had a tax liability or what that liability might be.

    If you were not served a notice, why have you filed a return???

    When the IRS sends you a notice to file ask the agent for proof of authority to act and jurisdiction. They have neither and cannot prove

  • Robert Bishop

    Mr Lysander is correct that the I-tax sounds voluntary. It is.
    Mark Coney is the American we all should be. knowledge of the law is the difference between involuntary servitude and freedom. The U.S.Supreme courts,u.s.code and Code of Federal Regulations trumps the IRS fraud & their inferior(fraud)court rulings. Example:(IRS file, IRM 6209, p.2-1thru 2-5 & 4-2 states: the W-2,W-4 & 1099 etc. are “subtitle B class 5” gift forms. Also the Federal Register states the “1040 need not be submitted(filed) if a W-2 is filed”.( because these forms are information gathering forms used by the SSA). 26 USC 6201,6321,& 6331 are pima facie( no reg.) because their regulation is in title 27 part 70 BATF,as confirmed by 1 CFR 1 sec. 21.21. 26 CFR 601.702(a)(2)(ii): any matter not published or incorporated in the Federal Register shall not change or effect anyones rights. 26 CFR 31.3402 p(1)b(2)w-4 withholding agreements are not required. Internal Revenue Manual(IRM)5.14.10.2 states: Private employers are not required to enter into payroll deduction agreements.
    IRM 4.10.7.2.9.8: IRS must follow U.S. Supreme court decisions,& they have the same weight as the code. Treasury Decision 3445 states: taxes paid by compusion, illegally demanded may be recovered if the assessment was erroneous or illegally coerced.(gift form?) The IRS Restructuring & reform Act of 1998, sec. 1203 stated IRS can’t falsify documents(W-4) & must follow the U.S. code, Code federal regulations(CFR) & policies(IRM).
    I haven’t listed the U.S. Supreme court decisions yet.(over 30) As Mr Coney says, you need to know the law because of our elected criminal government. My situation, I don’t file,the IRS won’t speak to me, the DOJ told me they wouldn’t file charges.( A public trial would expose the true law). Our gov. twists the law, subverts & does an end run around the U.S.Constitution. The IRS abuses & causes death of elder Americans by coerced suicide. Question: Why required to sign a gift form “if” a tax law really existed? It doesn’t. I offer freely my credible evidence to anyone who desires freedom. An extra for anyone suffering under abama care:Tltle 42 U.S.C. section 18115 Freedom not to participate in Federal Health Insurance programs: NO individual, company,or business shall be required to participate in any federal health insurance program & no penalty or fine will be imposed for choosing not to participate. Do you understand now? Thanks for your attention.

    • Melba Ford

      I want to thank you for the hard work these men and women do concerning the abuse of the IRS and their way to harm to so many people. At this time I am an elderly woman and being sued by IRS for tax’s amounting to 190,000. I don’t owe them a dime. I sued them for false records and I just received a notice telling me it will be dismissed. But their suit against me for 190,000 will go forward. I cant believe it I have not filed tax’s in years and at almost 80 don’t plan to. I pray that God will help end corruption in our Courts and government. Freedom is certainly not FREE. They have no respect for the law and could care less. It is all about the money.

  • Robert Bishop

    The W-4, W-2, 1099 etc. are subtitle “B” class “five” GIFT forms. 26 USC 6331 ( the “fraud” requirement to file)has regulation in “title 27 BATF”, making it null & void. The 1040 isn’t required if a W-2 is submitted as per “government document”. The IRS & gov. can’t refute the law, code & regulations & US Supreme court decisions that everyone should learn & use.( I can provide the code & regs to anyone, just ask) Inquiries are no good because they know Americans are ignorant of the law & their civil rights & no one will force them to act.
    Too many Americans use false, miss leading info from bad sources, so they know you are ignorant of the truth, & these people are harmed. If you provide the law, they refuse to speak or contact you. Congress & Senate support the IRS & DOJ fraud & deceit. Until Americans learn the law, Code, Regulations & use it & supporting each other, government will win. Until Americans shove the law into the face of your/our representatives & Senators they will ignore & support the fraud & abuse!( Note, the DOJ refused to file charges after I gave them my credible evidence) Simply speaking,we need to come together, strength in numbers to light a fire under their butts & throw them out. Drain the swamp :)
    Thank you.

    • Melba Ford

      In the position that I am in with the u s dismissing my suit against them and to continue with their suit against me, what would you advise me at this point. I have not appeared as yet in the second suit against me. I will appear without lawyer. I am planning to challenge Subject-Matter Jurisdiction. What do you think?

    • Paul Staples

      Robert Bishop. I am always in search of the truth, and cannot be party to a fraud. I would be interested in the information that you referenced that we could ask for and Lysander has my permission to share my email with you. Thanks for the information in your post.

  • DJ

    I am Very New to this stuff. I have a small (VERY SMALL) business and don’t know if my clients will claim the money paid. However, I feel that after watching Irwin Schiff’s YouTube stuff. https://youtu.be/ZNy4jzNHgkc that I shouldn’t have to follow something that is actually not a law.
    My question is:
    Why would some people actually file and then not sign?? Seems like that is just sending up red flags.

  • It’s apparent that no research will help us in the communist country. Where you are a threat for speaking the truth.Subject to arrest and or murder.

  • Ken Johnson

    Theresa, I doubt you special enough to get wacked.
    Signing a W4 is an agreement aand makes the people made liable. I always sign without prejudice at arms length above my signature on W4 W9 1040, etc. I have not been waked yet. If I ever run into any trouble, I will remind the man sticking his nose into my contract I will hold him liable. I am the only signer to any agreement and I volunteered and I added a condition above my mark. Not to mention I am one of the people, and I can rescind my signature anytime I wish.

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