Quatloos! > Tax
Scams > Tax
Protestors > EXHIBIT:
Tax Protestor Dummies 2 > Cases
("Damn, We Lost Again!
And why is it
that people who sell
tax protestor materials file their tax returns anyway . . .")
KENNETH A. EVANS
UNITED STATES OF AMERICA
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MEMORANDUM AND ORDER
JUNE 26, 2001
J.M. KELLY, J.
 Presently before the Court are cross-motions for Summary Judgment filed
by the Plaintiff, Kenneth A. Evans ("Evans"), and the Defendant,
United States Of America ("United States"). Evans filed suit in this
Court alleging that he is entitled to recover from the United States a tax
refund of $12,322.58. Evans contends that he overpaid his income taxes for
the 1999 tax year. Evans seeks return of his entire 1999 income tax payment
because he claims that no legal authority requires him to file an income tax
return or pay income taxes. The United States, through the Internal Revenue
Service ("IRS"), has refused to comply with Evans' request for a
full refund. Both parties now seek summary judgment as a matter of law pursuant
to federal Rule of Civil Procedure 56. For the following reasons, the Defendant's
Motion for Summary Judgment is granted and the Plaintiff's Motion for Summary
Judgment is denied.
 The parties are in general agreement
regarding the underlying facts of this case. Because there
are no issues of material fact, judgment can be rendered
as a matter of law. The facts of this case are as follows.
 Evans, a citizen of the United States
and resident of Pennsylvania, earned in excess of $62,000.00
in wages during the 1999 tax year. In 1999, Evans' employer
withheld from the his salary a total of $9,422.58 and forwarded
that sum to the IRS. In April of 2000, Evans sent an additional
$2,900.00 to the IRS to be applied to his 1999 income taxes.
Along with this additional payment, Evans enclosed a letter
requesting a refund of all money held by the IRS in payment
of his 1999 income taxes.
 Evans' letter to the IRS claimed that
the filing of an income tax return constituted a voluntary
waiver of one's Fifth Amendment right against self-incrimination.
Evans claimed he no longer wished to waive his Fifth Amendment
right by filing a return. He requested the IRS provide him
with instructions on how to file an income tax return without
voluntarily waiving his Fifth Amendment right and to provide
him with the specific law that required the filing of an
income tax return. Also, Evans attached a letter from an
attorney that explained the "voluntary nature of filing
an income tax return" and made various arguments for
the proposition that the United States has no authority to
tax the income of individuals. The IRS did not respond to
Evans' requests and did not refund any of his 1999 income
 Proceeding pro se, Evans filed suit
in this Court against the United States seeking judgment
in the amount of $12,322.58, the amount held by the United
States in payment of Evans' 1999 income taxes. Both parties
filed Motions for Summary Judgment, which the Court will
II. STANDARD OF REVIEW
 Pursuant to Federal Rule of Civil Procedure
56, a court must grant summary judgment "if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law." Fed.
R. Civ. P. 56(c). The movant bears the initial burden of
showing the basis for its motion. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). If the movant fails to meet this
burden under Rule 56(c), its motion must be denied. If the
movant adequately supports its motion, however, the burden
shifts to the nonmoving party to defend the motion. To satisfy
this burden, the nonmovant must go beyond the mere pleadings
by presenting evidence through affidavits, depositions or
admissions on file to show that a genuine issue of fact for
trial does exist. Id. at 324; Fed. R. Civ. P. 56(e). An issue
is considered genuine when, in light of the nonmovant's burden
of proof at trial, the nonmovant produces evidence such that
a reasonable jury could return a verdict against the moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). When deciding whether a genuine issue of fact exists,
the court is to believe the evidence of the nonmovant, and
must draw all reasonable inferences in the light most favorable
to the nonmovant. Id. at 255. Moreover, a court must not
consider the credibility or weight of the evidence presented,
even if the quantity of the moving party's evidence far outweighs
that of the nonmovant. Big Apple BMW, Inc. v. BMW of N. Am.,
Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Nonetheless, a
party opposing summary judgment must do more than rest upon
mere allegations, general denials, or vague statements. Tray
Rock Indus., Inc. v. Local 825, 982 F.2d 884, 890 (3d Cir.
 If the nonmoving party meets this burden,
the motion must be denied. If the nonmoving party fails to
satisfy its burden, however, the court must enter summary
judgment against it on any issue on which that party will
bear the burden of proof at trial. Celotex, 477 U.S. at 322-23.
 That the parties file cross-motions
for summary judgment under Rule 56(c) does not necessarily
make summary judgment appropriate. Reading Tube Corp. v.
Employers Ins. Of Wausau, 944 F. Supp. 398, 401 (E.D. Pa.
1996). In such a situation, "each side essentially contends
that there are no issues of material fact from the point
of view of that party." Bencivenga v. Western Pa. Teamsters,
763 F.2d 574, 576 n.2 (3rd Cir. 1985). Because each side
therefore bears the burden of establishing that no genuine
issue of material fact exists, "the court must consider
the motions separately." Id. (citing Rains v. Cascade
Indus., Inc., 402 F.2d 241, 245 (3rd. Cir. 1968).
 Evans advances three arguments in support
of his position that he is entitled to an income tax refund.
First, Evans claims that no legal authority requires him
to pay income taxes on his wages. Second, Evans contends
that any requirement that he file an income tax return would
violate his rights under the Fifth Amendment to the United
States Constitution, which protects against self- incrimination.
Finally, Evans argues that the Sixteenth Amendment to the
United States Constitution does not grant the United States
the authority to place a direct tax upon his wages because
such a tax would be an unconstitutional direct tax that would
need to be apportioned.
 The United States claims that the "variance
doctrine" limits the arguments that Evans may litigate
before the Court. The United States contends that the Court
can only hear Evans' arguments that were set forth in his
original refund claim. The Court will now discuss the arguments
of the parties.
A. The Variance Doctrine
 As a preliminary matter, the United
States argues that the Court is barred from hearing some
of Evans' arguments concerning his tax liability for 1999.
Specifically, the United States contends that the Court may
only hear Evans' argument that he is not required to file
a tax return. The United States bases its claim on the "variance
doctrine," which bars a taxpayer from litigating in
the courts a basis for a refund that was not originally identified
in the taxpayer's administrative claim. See Real Estate-Land
Title & Trust Co. v. United States, 309 U.S. 13, 17-18
(1940); Bank of New York v. United States, 526 F.2d 1012,
1019 (3d Cir. 1975); Scott Paper Co. v. United States, 943
F.Supp. 489, 493 (E.D. Pa. 1996). The aim of the doctrine
is to facilitate administrative determination of refund claims
and to restrict litigation to issues which the IRS has considered
and is prepared to defend in court. Id.
 A strict application of the variance
doctrine would bar Evans from litigating new grounds of recovery.
Evans' refund claim to the IRS only explicitly set forth
the arguments that he was not required to file a tax return
and that any requirement would violate his Fifth Amendment
rights. The Court will address Evans' Sixteenth Amendment
arguments, however, because they were mentioned in the letter
from the attorney that Evans attached to his refund claim.
In addition, the Court will give Evans some latitude because
he is proceeding pro se and because many of his arguments
are related. Morever, the Court feels that because these
types of tax protest claims have frequently arisen in recent
years, a comprehensive discussion of the law surrounding
the requirement to file income tax returns is needed.
B. The Reguirement to File An Income Tax
 Evans contends that no legal authority
requires him to file a tax return. The law requires, however,
that "returns with respect to income taxes under subtitle
A shall be made by . . . every individual having for the
taxable year gross income which equals or exceeds the exemption
amount. . . ." 26 U.S.C. section 6012(a)(1)(A) (1994).
The language of this statute is not unconstitutionally vague
and clearly specifies who is to file tax returns. United
States v. Moore, 692 F.2d 95, 96 (10th Cir. 1979). The statute
undeniably requires that every individual who earns a threshold
level of gross income must file a tax return. See United
States v. Pottorf, 769 F.Supp. 1176, 1183 (D. Kan. 1991).
 The United States has demonstrated
that Evans clearly met the exemption amount by earning wages
in excess of $62,000 during the 1999 tax year. Evans has
not argued to the contrary. Thus, Evans' argument that he
is not required to file an income tax return lacks any merit.
According to the plain language of Section 6012, Evans is
required to file a income tax return for the 1999 tax year.
C. Evans' Fifth Amendment Objection
 Evans argues that any legal authority
requiring him to file an income tax return would violate
his Fifth Amendment protection against self incrimination.
This contention has been uniformly rejected. The Fifth Amendment
states "no person shall be . . . compelled in any criminal
case to be a witness against himself . . . . U.S. Const.
amend. V. Generally, this Amendment protects individuals
from giving compelled self-incriminating testimony.
 It is well established that requiring
individuals to file federal income tax returns does not violate
their Fifth Amendment rights against self-incrimination.
See United States v. Sullivan, 274 U.S. 259 (1927). "There
is no Fifth Amendment privilege negating one's duty to file
a tax return." United States v. Edelson, 604 F.2d 232,
234 3rd Cir. 1979). Evans' argument is contrary to established
law. The requirement to file an income tax return and pay
income taxes does not infringe upon Evans' Fifth Amendment
 Evans relies on Garner v. United States,
424 U.S. 648 (1976), to support his contention that his Fifth
Amendment rights would be violated if he were required to
file an income tax return. Evans' reliance on this case is
misguided. In Garner, a taxpayer disclosed his occupation
as a gambler on his tax return and was prosecuted for crimes
related to illegal gambling. The Court recognized an individual's
Fifth Amendment privilege to refuse to answer certain questions
on a tax return if the objections are specifically made on
the tax return and each objection is justified by a fear
of self- incrimination. Id. The Garner Court emphasized that
their holding did not disturb the holding of Sullivan, that
found that the privilege against self-incrimination is not
a defense for failing to file a tax return. id.
 In this case, Evans is making a blanket
invocation of his Fifth Amendment privilege in an attempt
to convince the Court that any legal authority requiring
him to file a tax return is unconstitutional. This argument,
and Evans' reliance on Garner to support it, is baseless.
The Fifth Amendment privilege may be invoked by a taxpayer
who refuses to respond to specific questions included in
a tax return. An individual who uses the Fifth Amendment
in this manner, however, should confine that use to "specific
objections to particular questions on the return for which
a valid claim of privilege exists." Edelson, 604 F.2d.
at 234. "The Fifth Amendment may not be used to draw
a 'conjurer's circle' around the duty to file a tax return." Id.
In the present case, Evans makes no objections to specific
questions on the tax return but claims any authority requiring
him to file a return would violate the Fifth Amendment. This
assertion is an over-extension of Garner. The statutory and
legal authority requiring Evans to file an income tax return
and pay income taxes does not violate his Fifth Amendment
C. The Power to Tax Wages
 Evans argues that the Sixteenth Amendment
does not grant the United States the authority to place a
direct tax upon his wages because such a tax is an unconstitutional
direct tax that must be apportioned. Although Evans relies
on a number of Supreme Court cases to support his position,
he has misinterpreted their meanings. The Sixteenth Amendment
eliminated the necessity for apportionment among states of
taxes on income. The language of the Amendment is clear and
specific: "The Congress shall have power to lay and
collect taxes on incomes, from whatever source derived, without
apportionment among the several States, and without regard
to any census or enumeration." U.S. Const. amend. XVI.
 Evans relies upon Eisner v. Macomber,
252 U.S. 189 (1920) as support for his position that a direct
tax on wages would violate the requirement of apportionment.
To the contrary, Eisner held only that a stock dividend made
to shareholders in their proportionate interests against
profits accumulated by the corporation should not be considered
income. Id. at 219. The Court found that a tax on such dividends
was a tax on capital increase and not on income. Id. at 213.
Thus, the Court found that the Sixteenth Amendment did not
grant the United States the authority to tax, without apportionment,
a stock dividend made lawfully and in good faith. Id. at
219. Because the Eisner case only dealt with the treatment
of stock dividends as income, it is inapposite to the instant
 Evans also argues that Stanton v. Baltic
Mining Co., 240 U.S. 103 (1916), declares that the Sixteenth
Amendment does not permit the United States to place a direct
tax on wages because such a tax would violate the requirement
of apportionment. This reading of the Stanton case is erroneous.
In fact, the Stanton case did clarify the purpose of the
Sixteenth Amendment. The Court simply found that the provisions
of the Sixteenth Amendment were not a new grant of power
to tax but merely a mechanism to eliminate the apportionment
requirement for income taxes, regardless of the source of
the income. Id. at 112-13.
 The position of the Stanton court is
clarified in Brushaber v. Union Pac. R.R. Co.., 240 U.S.
1 (1916). The Brushaber Court stated that "the authority
conferred upon Congress by section section of Article I to
lay and collect taxes, duties, imposts and excises is exhaustive
and embraces every conceivable power of taxation. . . ." Id.
at 12. "[T]he whole purpose of the [Sixteenth] Amendment
was to relieve all income taxes when imposed from apportionment
from a consideration of the source whence the income was
derived." Id. at 18. Stanton and Brushaber indicate
that the Sixteenth Amendment made clear that income taxes,
regardless of the source of the income, are not subject to
any apportionment requirement. Thus, Evans' contention that
the United States does not have the authority to tax his
wages is meritless.
 AND NOW, this day of June, 2001, in
consideration of the Motion for Summary Judgment filed by
the Plaintiff, Kenneth A. Evans (Doc. No. 3), and the Motion
for Summary Judgment filed by the Defendant, United States
of America (Doc. No. 9), and the Responses thereto filed
by the parties, it is ORDERED that:
1. Motion for Summary Judgment by Plaintiff,
Kenneth A. Evans,
2. Motion for Summary Judgment by Defendant, United States of
America, is GRANTED. Judgment is ENTERED in favor of the
Defendant, and against the Plaintiff, on all Counts of the
BY THE COURT:
JAMES McGIRR KELLY, J
Return to Tax Protestor Exhibit