Protesting the Tax Protestors

Protesting the Tax Protesters

by James Ostrowski by James Ostrowski


I am not now nor have I ever been a big fan of the “tax protester” movement.

Wikipedia has a good definition:

“A tax protester is an individual who denies the obligation to pay a tax (for which the government has determined that person is liable) based on a belief that the government is acting outside of its legal authority when imposing such taxes.”

Tax protesters make what I believe are arcane legal arguments about why this or that tax has no legal basis. I’m not going to bother over the details of their arguments. I’ve heard them for over 25 years ad nauseum. Fortunately, law professor Jonathan R. Siegel has performed that disagreeable task for us.

The courts have held that there is a legal obligation to pay taxes. What the “legal” in that term means exactly is a very interesting question which I addressed at length in a law school paper which I will publish at some point.

Bottom line: "legal" means that if you do not comply, the government may use physical coercion against you.

The tax protesters apparently believe that if they make their esoteric arguments to the authorities that the authorities will magically cease to enforce tax laws. It’s a complete waste of time in my view. Many tens of thousands of people have spent many hundreds of thousands of dollars supporting the tax protester movement. What have they accomplished? Several of them have helped increase taxes for federal prisons.

According to Wikipedia, several prominent tax protesters, including Irwin Schiff, have been convicted and sentenced to prison. As long ago as the early 1980’s my law professor, Henry Mark Holzer, told me that tax protesters were getting killed in the "advance sheets," the most recent decisions of the U. S. Courts of Appeal.

Tax protesters are not exercising civil disobedience as Henry David Thoreau did. That would be an entirely different strategy. Civil disobedience involves deliberately violating an unjust law so as to arouse public sentiment against it. That is not what tax protesters are doing. Thoreau wrote in this regard:

Cast your whole vote, not a strip of paper merely, but your whole influence. . . . If a thousand men were not to pay their tax bills this year, that would not be a violent and bloody measure, as it would be to pay them, and enable the State to commit violence and shed innocent blood. This is, in fact, the definition of a peaceable revolution, if any such is possible.

Much tax protester time is spent praying to the Constitution. Big problem. Constitutions don’t limit government power because the government has claimed the exclusive right to say what they mean.

More importantly, the Constitution is a legal document. Law is a reflection of pre-legal values. The values that gave rise to the Constitution are in large part dead. The vast majority of the public no longer holds them. You might as well be speaking Chinese to them.

Worse yet, a large portion of the population is on the federal dole. They’ll favor the tax authorities over the most elegant legal arguments against the legality of the federal income tax. This is the tax protesters’ biggest problem and yet I have never heard them address it!

Let’s assume for the sake of argument that the Supreme Court bought these tax protester arguments and held that the income tax as presently understood is unconstitutional. Congress would meet in the morning and approve a constitutional amendment retroactively overruling that decision. 38 state legislatures would meet in the afternoon and ratify the amendment. Yawn.

Even as political strategy, tax protesting fails. It takes enormous effort just to understand their arguments and it’s virtually impossible to translate them into plain English for a mass audience. Also, by urging individuals to stand up to the system by themselves, they allow the government to pursue a divide and conquer strategy. They counter with the common sense and intuitively appealing argument that the tax protesters are just making the rest of us pay more. A much more effective argument is to argue for a general and steep decline in taxation for all of us.

If legal arguments are a waste of time, how do we fight confiscatory taxation? By making moral, philosophical, economic, historical and practical arguments against it. And by explaining why the various programs funded by taxation are unnecessary or destructive and can be replaced by market-based solutions.

To fight tax slavery and the horrendously destructive policies it funds, support the organizations working hard to end it: the Mises Institute,, the Future of Freedom Foundation, and the newest kid on the block Free New York. FFF has recently published a fine three-part series by Sheldon Richman exposing some of the fallacious arguments of the tax protesters.

To my tax protesting brothers and sisters. You have been led astray. Join us. The path of lesser resistance has gotten you no where.

January 1, 2007

James Ostrowski is an attorney in Buffalo, New York and author of Political Class Dismissed: Essays Against Politics, Including "What’s Wrong With Buffalo." See his website.

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