But what does the fall really mean?
THere is a story about an Oregon man who beat up the IRS in court for refusing to pay income taxes until the federal government stopped funding abortions. As you can imagine, as a taxpayer rights attorney, I was asked what the case really means.
Court documents indicate that the headlines are misleading. This story warrants a full and correct analysis, so there we go.
Michael Bowman is strongly against abortion. Under the premise that the federal government is directly or indirectly funding the abortion industry, he has refused to file tax returns or pay income taxes since 1997. nor is it necessarily anti-government. In fact, he loves America. He’s just a Christian who opposes funding for abortions.
Due to Mike’s impressive string of non-filings, the IRS was preparing Returns Replacements (SFRs) for 1999-2001, 2008, and 2009. The agency then pursued the civil law recovery of the resulting ratings. In November 2013, Mike made two calls to the IRS tax officer on his case, leaving phone messages saying he would not pay taxes as it would affect his right to practice his Christian religion. In 2015, he even made a video claiming that his constitutional right to practice his religion outweighs his legal obligation to pay taxes.
This is where a lot of the news gets out of hand. Mike did not sued the federal government over the legal right not to pay taxes. There was also no civil lawsuit against Mike for tax collection. Rather, the federal government charged Mike with a crime. They charged him with tax evasion of the Section 7201 crime and four charges of willful failure to file tax returns under Section 7203. This is a remarkable difference from a civil litigation that is about whether you can be forced to have abortions with your taxpayers’ money if one is religiously hostile to such a practice.
In court, Mike won on one major point. But the victory had nothing to do with Mike’s underlying entitlement to a First Amendment right not to pay taxes while government spending violates his religious beliefs.
Section 7201 of the tax code is the so-called evasion law. It declares that anyone who “willfully attempted in any way to evade or evade a tax” is guilty of the crime. It has long been the law that in order to support a conviction under Section 7201 there must be evidence of a confirmatory act by the defendant aimed at deceiving or misleading the IRS in the appraisal or debt collection process. The much-cited and established Spies against USA Decision stands for the thesis that a mere failure to act – failure to submit or non-payment – does not in itself reach the level of a crime.
To support a criminal conviction there must be an affirmative act – an act of commission versus omission. Spies and the long series of cases that follows Spies refer to potential confirmatory acts that encourage fraud or tax evasion as a “scam badge”. There cannot be a crime without unequivocal evidence of an affirmative act, the purpose of which is to facilitate tax evasion. (For a more detailed discussion of this, see Chapter 3 of my book, How to get a tax amnesty.)
Fraud badges are affirmative acts designed to deceive or mislead the tax collector. Examples of such behavior are:
- Hiding income through the use of “nominees”,
- With two sets of books
- Only ask for cash to pay for services,
- Incorrect information in submitted tax returns, such as
- Title assets on behalf of third parties in order to hide them from the government,
- Hiding or destroying records,
- Have checks made out to others for payment of goods or services payable in order to avoid reporting by third parties, or
- Using fake names or dummy companies (corporations or LLCs) to hide income.
Mike wasn’t accused of doing any of these things. The only allegation by the IRS of “evasive” behavior is the fact that Mike cashed his own checks at his bank instead of depositing the checks in his account. Mike’s attorney argued, and the court agreed, that such behavior did not reach the level of evasive behavior required to be convicted under Section 7201. The court dismissed the indictment offenses.
The defense against abortion played no part in the argument that led to the dismissal of the crime charges. More importantly, Mike still has four tax return failures to deal with. Each charge carries a possible penalty of up to one year in prison and a fine of $ 25,000. These are misdemeanor charges, not crimes, but they are very serious nonetheless.
The question for Mike is whether his anti-abortion stance will serve as sufficient defense to absolve him of the charges. Unfortunately, that is not likely. All the government needs to prove is that: a) the defendant was required to file, b) the defendant did not file a motion, and c) the failure was “willful”. The first two elements are simple: Mike admits them. As for the third element, if the accused has voluntarily and willfully violated his known legal obligation to file the return – and civil disobedience, even if carried out in good faith, is the embodiment of the notion of premeditation. That is, you know what the law requires, but you refuse to obey the law because you are conscientious about refusing (and possibly videotaping yourself).
The long history of civil disobedience, both in this country and throughout the free world, teaches that criminal convictions always precede social change. That Mike stands for his anti-abortion beliefs is commendable. As Christians, we must defend ourselves against the rising tide of social chaos and cultural degeneration. But beware. If you choose a course of overt civil disobedience, you are inviting criminal penalties. Before you act (or fail), count the costs. A more effective approach is to follow the formula I present in my book, Salt and light.