Talk:Brushaber v. Union Pacific Railroad Co.

message: From Famspear
To Flytrapper and all editors
Dear Flytrapper
In your recent edits you don't state what you feel is incorrect about the article as written. I have found no errors in the language that you deleted. I also argue that some of your edits are incorrect, as explained below.
You indicated that the Brushaber case is constantly misunderstood by "those who refer to constitutional adherents as tax protesters." I argue that your statement is incorrect.
First, tax protesters, to the extent they make arguments about the constitutionality of the tax, are generally arguing that the tax is unconstitutional. By definition, tax protester arguments on constitutionality are not only without legal merit, the arguments are also legally frivolous. This is not merely my position or conclusion. The courts have so ruled without exception for the past 30 years. Indeed, the frivolousness of the arguments is what makes them "tax protester arguments."
This is an astonishing record. Since 1975, when the term "tax protester" was first used in reported decisions in the way we're using it, I have not found and, to the best of my knowledge, no one else has ever found, a reported Federal court decision in which a tax protester argument was ever ruled to be correct. Every single time I have seen a passage in tax protester literature that says that the tax protesters won some particular tax protester argument, the claim has turned out to be false.
Second, the supposed "misunderstanding" you believe exist stems, you say, from the erroneous belief that the Brushaber decision relieves taxes on incomes from the rule of uniformity.
I agree that such a belief would certainly be erroneous -- there's just one problem with your statement. I have never heard anybody make the argument that the Brushaber court ruled that way! Not even the tax protesters make that kind of argument! You seem to be attributing the "misunderstanding" not to the tax protesters, but to those who disagree with the tax protesters (i.e., legal scholars, lawyers, CPAs, the courts, etc.)!
More specifically, the uniformity rule is the rule that excises (i.e., indirect taxes, such as income taxes other than taxes on income from property) must be imposed with geographical uniformity.
Obviously, the Brushaber court never ruled that excises do not have to be geographically uniform. Indeed, that was not even one of the issues presented to the court in the case.
The court did refer to the uniformity rule -- because Mr. Brushaber had talked about it in one of his arguments. But neither Mr. Brushaber nor the railroad company nor the government were really disagreeing about the point that the uniformity rule applies to excises.
It may not be obvious to you, but I assure you it's unlikely anybody (tax lawyer or tax protester) would argue that Brushaber stands for the proposition that excises do not have to be imposed with geographical uniformity. Again, I've never even heard a tax protester make that argument. (I'm not saying it's never happened -- it's just I can't remember ever seeing it, and more importantly it wouldn't make sense for  tax protester or anyone else to argue that Brushaber stands for the proposition that Congress could impose an income tax in, say, only New York and Montana -- and not impose the same tax in all the other states.)
Bottom line: If legal scholars were to misunderstand Brushaber as ruling that excises did not have to be uniform, legal scholars would in effect be saying Brushaber stands for the proposition that Congress could validity enact an excise that was imposed only in some states but not others! I have studied the Federal income tax laws for 29 years and I cannot remember ever seeing anyone make such an argument, especially not a tax lawyer, CPA, law professor, or IRS employee. If someone has ever made such an argument, they would be in a very, very small minority.
Next, your comments in the talk page to the effect that the term "tax protester" shouldn't be used are, I argue, off base. "Tax protester" is a term that has negative connotations, and some people undoubtedly become very angry when the term is used to describe them. Congress in 1998 passed a law forbidding IRS employees from using the term in IRS documents.
However, using the term in Wikipedia does not violate the rule against non-neutral point of view. Indeed, "tax protester" is still a technical legal term used constantly by the courts to describe arguments against the Federal income tax that are not only legally meritless, but which have been repeatedly ruled meritless. When courts or others use the term "meritless" or "without merit" or "frivolous" to describe the tax protesters' arguments, that probably makes the protesters very angry as well. However, these are formal legal terms. In Wikipedia, we do not censor ourselves with respect to the use of legal terminology merely because the use of that terminology offends people. Sorry. (I note that you did not actually delete the term "tax protester" from the article itself, and I commend you on that.)
Regarding your statement that the Court's decisions repeatedly assert that income taxation inherently belongs in the category of indirect tax -- yes, this is very close to be correct. In Brushaber the court used terminology very close to that. However, the Court also said that it was not overturning the Pollock ruling that tax on income from one particular source -- namely, income from property -- was a direct tax. What the Brushaber court essentially said was that the Sixteenth Amendment made the dichotomy legally irrelevant. If you want, I can quote the exact wording from the decision.
I am currently working on the history of the Brushaber case and I may actually be making further edits on this article. You are correct that this decision is "misunderstood" -- however, I argue that your edits muddied the water a bit more, rather than clarifying.
Any comments? Yours, Famspear 20:30, 10 May 2006 (UTC)
thread_title: Comments -- by Famspear -- on 10 May 2006 edits by Famspear

message: The main holding in this case is the ruling that an income tax is an excise tax. Some people are confused by this and deny that income taxes are indirect taxes, so it is necessary to quote the case, rather than merely summarize. Mpublius 20:55, 19 September 2007 (UTC)
replies: text: Dear Mpublius: What's your authority for contending that this is the "main holding" in the case. Aren't you just quoting from the case, rather than distilling the holding? How do you determine what the "holding" is? Famspear 21:09, 19 September 2007 (UTC)
replies: text: Dear Mpublius: The verbiage in your edit is correct, but I think it goes in the section on the discussion of "excise" (indirect tax), so I have moved it down there. You have provided a quotation from the case. The quotation might or might not be one of the holdings in the case, though. I'll have to check to be sure. The term "holding" is a technical legal term. Most of the verbatim text in a court opinion is not part of the "holding" or "holdings," so you have to be careful about terminology. Famspear 21:34, 19 September 2007 (UTC)
thread_title: Main holding

message: A request for comment has been opened on the general topic of tax protester theories, and whether the articles that address them are NPOV. bd2412 T 18:08, 23 January 2008 (UTC)
thread_title:  [[Talk:Tax protester/Request for comment]] 

message: Just a reminder that I have proposed to call for a conclusion to this discussion on tax protester rhetoric on February 6. If anyone has anything more to add to the discussion, speak now! bd2412 T 16:56, 3 February 2008 (UTC)
thread_title: [[Talk:Tax protester/Request for comment]] reminder