16th Amendment - The Sixteenth Amendment Bill Benson Litigation

In this historic 16th Amendment litigation, the Government has sued Bill Benson seeking an injunction prohibiting him from falsely telling people the Sixteenth Amendment to the United States Constitution was not ratified and therefore people are not required to file an income tax return. The Government contends it is entitled to an injunction because Benson is promoting an abusive tax shelter, conduct made subject to a penalty per 26 U.S.C. Section 6700. All of the pleadings filed in the case can be found here.

In 1894 Congress passed an income tax act very similar to the current income tax law. That law was challenged on the basis that a tax on income is a direct tax, the United States Constitution requires direct taxes to be apportioned, and the act passed by Congress was not apportioned. The United States Supreme Court agreed and held the income tax act was unconstitutional in Pollock v. Farmer's Loan & Trust Co., 157 U.S. 429, aff. reh., 158 U.S. 601 (1895).

In 1909 President Taft called a special session of Congress. Taft asked Congress to propose a constitutional amendment to overcome the Supreme Court's Pollock decision. Congress proposed the Sixteenth Amendment, which was then sent to the states for ratification by Secretary of State Knox. Certificates of Ratification were sent back to Knox, but the language on the certificates differed from the 16th Amendment language passed by Congress. Knox sent the certificates to the Solicitor of the United States and asked for a legal opinion as to whether the states had ratified the proposed Sixteenth Amendment.

The Solicitor noted the differences between what Congress proposed and the states ratified, and presumed, that because states do not have the authority to alter a proposed Constitutional amendment, that none did. He concluded, therefore, that the differences in language were nothing more than minor clerical errors in the preparation of the Certificates of Ratification. Knox then declared the 16th Amendment had been ratified.

The legislative journals conclusively establish, that despite not having the power to do so, several states intentionally modified the language of the proposed amendment. The presumption relied upon by the Solicitor was wrong! Benson discovered other discrepancies too. He wrote and published a book on what he discovered, The Law That Never Was, available on his web site at www.TheLawThatNeverWas.com. Benson contends that less than thirty-six states actually ratified the proposed Sixteenth Amendment.

In the absence of the 16th Amendment, the current income tax is an unapportioned direct tax, and is just as unconstitutional today as it was in 1894. Since 1985 Benson tells everyone who will listen about what he found, and urges people to exercise their First Amendment rights to rectify the situation. Benson's message is gaining acceptance in the marketplace of ideas. The Government now seeks to silence him.

Many people ask why, if the 16th Amendment created no new taxing power, as stated by the Supreme Court in Brushaber v. Union Pacific Railroad Co., 240 U.S. 1 (1916), it is necessary to litigate whether the Sixteenth Amendment was ratified? The Supreme Court ruled in Pollock that the income tax enacted by Congress in 1894 was a direct tax, the act passed by congress wasn't apportioned, and therefore the tax was unconstitutional. The decision wasn't unanimous. The court was split five to four. Those in the minority believed a tax on income was not a direct tax, but an indirect, excise tax. One of the dissenters was associate justice White. Notwithstanding the decision was split five to four, the result was that the constitutional requirement that direct taxes be apportioned was upheld. To overcome the holding of Pollock, Congress proposed the 16th Amendment. It was allegedly ratified in 1913.

Subsequent to the alleged ratification of the Sixteenth Amendment, the Supreme Court does not agree on exactly what the 16th Amendment did:

• According to the Supreme Court in Eisner v. Macomber, 252 U.S. 189 (1920), the Sixteenth Amendment removed the requirement of apportionment for the direct income tax. That is, direct taxes still had to be apportioned except the direct tax on income.

• According to Brushaber, written by Justice White who by that time had become the chief justice, the 16th Amendment prevented courts from doing what he claimed the Pollock court did--consider the source of the income to take the tax on that income out of the class of excises, to which he claimed it belonged, and placing it in the class of direct taxes. That is, a tax on income, regardless of the source, is an indirect tax; because the tax is not a direct tax, it does not have to be apportioned.

Whether you agree with Brushaber that the tax is an excise tax that doesn't have to be apportioned, or agree with Eisner that the tax is a direct tax that doesn't have to be apportioned, without the 16th Amendment, the law reverts back to Pollock. The serious student will find my book, Judicial Tyranny and Your Income Tax, an in depth study of the history of the income tax, with two chapters devoted to the issue of direct and indirect taxes, and an extensive analysis of the Pollock and Brushaber cases. If you would like a copy, click here.

The issues in Bill Benson's case, however, transcend whether or not the 16th Amendment was ratified. More important is the issue that the government believes it can take a position and punish someone who disagrees with that position, without affording the person any opportunity to prove the government's position is wrong. The government, unable to refute Bill Benson's facts conclusively establishing less than three-fourths of the states voted to ratify the proposed amendment, objected to the facts on the grounds they were irrelevant, immaterial and scandalous. The court agreed, and issued an order that Bill Benson is not to be allowed to defend based upon the truth. If this posture is allowed to stand, every semblance of justice in America will be trashed. It is inconceivable that the Star Chamber becomes again the type of court justice to be utilized to resolve disputes between the people and the government.

Equally disturbing is the position of the federal government that it has the unfettered right to obtain the names and addresses of any person who so much as ordered Benson's material, read it or possesses it. The pleadings, filed by the government, make it perfectly clear the government intends to obtain the names and investigate any person whose name they obtain.

The issue of taxation and the Sixteenth Amendment is a political question. We, as Americans, supposedly have an inalienable right to the free debate of these issues without government interference. We, as Americans, supposedly have the right to require the government to answer our questions. We, as Americans, supposedly have the right to require the government to prove its allegations against us in Court. We, as Americans, supposedly have the right, when charged with a crime, to present a defense.

To counter the government's efforts to destroy our First Amendment rights, three people have intervened in the Benson litigation. They intervened as John Doe I, John Doe II and Jane Roe to protect their names from the government. They are demanding a protective order preventing the government from obtaining their names, as well as, the names of anyone else involved in this important political debate on the Sixteenth Amendment.

If we don't take a stand, together, we lose. It's that simple. The Bill Benson litigation is, perhaps, the single most important litigation in the court today. The issues affect YOU, just as much as they affect Bill Benson.

I am representing Bill Benson and the three interveners for free. They do not have funds to prosecute and defend their rights in this 16th Amendment litigation. I am asking for your donations to keep me in housing and with food and supplies while this litigation is pending.

Whether you agree with Bill Benson or not, this litigation is not about one of us being right or wrong. This litigation is about preserving YOUR freedom. It is about your right to even have an opinion and express it without fear of government retaliation. Our country is in serious distress, as we now have East German like checkpoints at our airports, and wholesale government disrespect of, and contempt for, our Constitution.

Ben Franklin said during another time of intolerable governmental action: "We must all hang together or, most assuredly, we shall all hang separately." Please support this litigation and make a donation to support those who have taken a front line position to defend liberty for all of us. Click here to Make a Donation. Also, please pass along the link to this case to your family and friends.