A31-129 – Constitutional Taxation

Todd is away this weekend, and Corey interviews a government employee of more than 30 years on the subject and implication of Supreme Court Decision Brushaber v. Union Pacific R.R. Co. This is one of the most information dense podcasts ever produced by Agenda31, and is the first modern look into the landmark case that identifies for tax purposes, an Art. IV citizen as a  “non resident alien” with respect to the Federal Government and United States sourced income.

J.P. presents evidence that Frank Brushaber was born in the United States after the passage of the 14th Amendment, and could, if he opted, identify himself as a 14th Amendment U.S. citizen. Instead, Mr. Brushaber identified himself as an Art. IV state citizen.

Mr. Brushaber lost his case, however, an examination of this case, as detailed by JP, has incredible implications on widely held legal beliefs. The lessons from the Brushaber case are many, this is a podcast you will want to listen to several times, take notes, and have access to the references below.

Show notes and References:

(time notations are calibrated with the end of intro music)

Intro: Americans get an F on income tax quiz: http://on.mktw.net/2q3XiuO

00:06:15 Constitutional Taxation

00:07:30 16th Amendment Reference – http://bit.ly/2q09d0m

00:09:46 78th Congress, Congressional Record, March 27, 1943, pg 2580 F. Morse Hubbard legislative draftsman, Treasury Dept. – http://bit.ly/2oqbxgY

00:12:58 Two things done to avail yourself to the income tax

26 U.S.C. § 3402(p)(3) – Voluntary Witholding Agreements – http://bit.ly/2q8Zh0W

Rewards for finding law on income tax: http://bit.ly/2oVKHvX

00:18:24 If you have a federal income tax liability, pay it.

00:20:34 Brushaber v. Union Pacific R.R. Co., 240 U.S. 1 (1916)  – http://bit.ly/2oVTQoi

00:21:08 About Frank Brushaber

00:21:56 Pacific Railway Act of 1862, (12 Stat. 489) – http://bit.ly/2oVFYdA

00:30:45 U.S. Const. amend. XIV, § 1, cl.1.- http://bit.ly/2q48ffJ

00:32:57 What is a State? Texas v. White, 74. U.S. (7 Wall.) 700, 721 (1868). – http://bit.ly/2oW0QS5

00:35:25 Obama refers to the “57 States” – http://bit.ly/2oBA6TB

00:35:59 Social Security Act (Definition of “State”) 42 U.S.C. § 1301.

00:38:26 Insular Cases:   Yale Law Review – PDF Download, Wiki http://bit.ly/2q406bh

00:38:56 Downes v. Bidwell, 182 U.S. 244, 279 (1901). – http://bit.ly/2oixyhM

00:42:44 Elk v. Wilkins, 112 U.S. 94, 102-103 (1884). – http://bit.ly/2p9W6c9

00:44:41 State of Virginia v. State of West Virginia, 78 U.S.  39, 55 (1870). – http://bit.ly/2ozw7rx

00:46:01 Collector v. Day, 78 U.S. (11 Wall.) 113, 124 (1870). – http://bit.ly/2p6di0f

00:46:43 Heath v. Alabama, 474 U.S. 82, 92-93 (1985). – http://bit.ly/2oilD3t

00:56:09 How is your tax status determined?

00:58:37 Definition of “Foreign estate” 26 U.S.C. § 7701(a)(31). – http://bit.ly/2pT7maX

01:02:46 Antonin Scalia, hyphens and the Purple People Eater. (See p.160) – http://bit.ly/2pcJFKJ

01:05:43 Definition of “Nonresident alien” 26 U.S.C.  § 7701(b)(1)(B). – http://bit.ly/2pT7maX

01:07:04 United States v. Cruikshank 92 U.S. 542, 549 (1875). – http://bit.ly/2oiEI5V

01:07:45 Slaughter-House Cases 83 U.S. (16 Wall.) 36, 74 (1872). – http://bit.ly/2pqzqp1

01:09:14 Two types of State Citizenship

01:10:47 Retrocession of D.C. property to Virginia – http://bit.ly/2oziSHi – http://bit.ly/2pcAxWj

01:13:14 Bradwell v. State of Illinois, 83 U.S. 130, 138 (1872). – http://bit.ly/2pqso3t

01:14:36 Steigleder v. McQuesten, 198 U.S. 141 (1905). – http://bit.ly/2ozsQIN

01:25:00 Revisit Brushaber

01:27:52 Southern R. Co. v. Allison, 190 U.S. 326, 337 (1903). http://bit.ly/2pqGHoX

01:37:09 The girl who doesn’t legally exist.  – http://bit.ly/2pU5EbT

01:46:51 26 CFR § 301.6109-1(g)(1)(i). – http://bit.ly/2oW3Uh4

01:47:54 Long v. Rasmussen 281 F.236, 238 (D. Mont. 1922). – http://bit.ly/2oW36sN

01:49:58 26 CFR § 1.1441-1T(b)(2)(iii)(A). – http://bit.ly/2oVUfXM

01:54:57 USA PATRIOT Act – http://bit.ly/2pqvWmt

01:55:12 7 FAM Section 1111(b) (2015). – http://bit.ly/2ozd1BW

01:57:29 United States v. Wong Kim Ark, 169 U.S. 649, 656 (1898). – http://bit.ly/2pT99Na

01:58:55 22 U.S.C. § 212. – http://bit.ly/2oBQ4x0

01:59:15 8 U.S.C. § 1101(a)(30). – http://bit.ly/2ozEa7B

02:14:21 Internal Revenue Code, Ch. 53. – http://bit.ly/2oBPf7q

02:15:15 Printz v. United States, 521 U.S. 898 (1997), Justice Thomas’ Concurring Opinion – http://bit.ly/2oBNJlv

Password protected PDF compiled by special guest “JP” on Frank Brushaber:  Frank Brushaber Precedent for Real Tax Reform.

This document and password is available to all financial supporters of the Agenda31 podcast and website. If you have supported A31 outside of the one time or monthly recurring memberships available at this website, and want access, please send a request to info at agenda31 dot org.

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2 comments on “A31-129 – Constitutional Taxation
  1. Publisher says:

    From “JP” the guest on this episode, in response to the comment by “kmcrober”:

    Todd and Corey,

    I would love to engage this individual on this discussion. He engages 100% in strawman arguments. That’s what’s so fascinating about this topic–if one is anchored in a particular assumption, they just cannot get past the their own beliefs and look at what is actually being argued and what the statutes, regs, and case law say–or more importantly–WHAT THEY DON’T SAY. He is the one making incorrect assumptions.

    The “debunker” is correct in some respects, however–the SCOTUS case in no way addresses Brushaber’s citizenship, and his citizenship also had ZERO to do with his owing the tax. He is 100% correct on this point. Brushaber owed the tax because the income was from a “United States source” — PERIOD!! The liability is 100% exclusive of his status. However, if one actually understands the difference in State citizenship under Art. IV versus Amndt XIV (which he clearly averred in his complaint), the salient point emerges over how his status comes about–national versus federal (or State) citizenship, and the privileges and immunities manifest under the two contexts. See the Slaughter-House Cases and United States v. Cruikshank wherein the court plainly states: ” . . . the citizenship is not the same, and the privileges and immunities are not the same.” (paraphrased). He would also be well-advised to read Federalist 39 wherein the Founder’s explain the difference between “national” and “federal.”

    The issue is two-fold: Status being one; liability being the other. I have a million and one ways of shutting his reasoning down, not the least of which is a personal, one-on-one verification from a Supreme Court Justice that a citizen of one of the Several States CAN FILE THEIR TAXES AS A NONRESIDENT ALIEN. The “Whys” and “Hows” of this is the starting point. Then and only then, can we talk about how a “nonresident alien” can also legally AVOID (NOT EVADE) the tax. He is absolutely correct again in that a “nonresident alien” can incur a tax liability and also be convicted for tax evasion IF THAT LIABILITY IS EVADED. But what this “guru” doesn’t want to discuss is how it can be legally AVOIDED. The tax statutes and regs clearly explain how this can be done. Why won’t he discuss this or even consider what’s actually being presented when the Treasury talks about certain income producing activities nor requiring a taxpayer ID number? Do these statutes and regs not exist in his mind?

    He will refuse to discuss 26 U.S.C. Sec. 2209, which demonstrates (through a very long and thoughtful analysis of national citizenship) that a “citizen or resident of the United States” for tax status/liability purposes (26 CFR 1.1-1(b)) ***IS NOT THE SAME THING*** as a “citizen” of the United States for political purposes under Amndt XIV or other avenue of law (26 CFR 1.1-1(c)). He just ASS-UMES they are convertible terms. He has fallen victim to exactly what the author was trying to achieve–an important and misleading ASSUMPTION. Why else would they proffer two definitions? Sec. 2209 proves this. GO READ IT FOR YOURSELF! This is easy to see if one will go read it. But he does’t even understand the difference between the 26 U.S.C. Sec. 7701(a)(9) definition of “United States” in its geographical sense and the “other sense.” Furthermore, he couldn’t even tell you what that other sense is. Why? Because he is the “guru.” And he will refuse to discuss 26 U.S.C. Sec. 7701(a)(31). He also makes the incorrect assertion that I have not enjoyed success in this arena. He concludes that a victory in court is necessary. Well, you see . . . if there is no controversy, then there is no adverse contact with the government and no legal battle to fight. If you legally avoid per the law and regs, then there is no controversy. Isn’t this what people want? Freedom without having to fight the government over the issue? Well, they provide it. But nobody wants to read it or see it. It’s hidden in the middle of the room!

  2. kmcrober says:

    Brushaber, not Brucehaber. Just a typo, but one that indicates you guys haven’t read or understood the case. That’s also apparent from the very, very weak reasoning in this episode.

    Brucehaber’s citizenship was irrelevant to the case, and the case never once holds that he was a nonresident alien. Neither does TD 2313; it only announces that the tax is going to be collected from nonresident aliens, and cites the Brushaber case as contemporaneous authority for the applicability of the tax generally. (We know it’s not citing the case for anything to do with nonresident alien status because the case says nothing about such status. It can’t cite the opinion for a proposition the opinion doesn’t discuss.) It does not assume that Brushaber was a nonresident alien, or establish that the tax is only applicable to nonresident aliens. This is just another conspiracy-theory fantasy. If it weren’t, you could go to court and prevail on the theory (and then make a ton of money as a tax strategist)–that’s never happened, because it’s bunk.

    Nor can someone escape income tax by “averring Article IV citizenship.” All this crap has been tried in court, and has failed. See, i.e., Lonsdale v. United States, 919 F.2d 1440, 1448 (10th Cir. 1990). That sort of argument has been tried, and failed, so often in court that Rev Rule 2007-22 specifically deals with it. It’s called a “frivolous” argument, such that even raising it in court gets you a fine because it’s been so thoroughly discredited in so many cases over the years. “JP” hasn’t done much real research if he hasn’t come across the many cases destroying this bogus theory.

    In fact, anyone born in any one of the states is a US citizen under the 14th amendment unless they’re the child of a foreign minister. That’s clear from Wong Kim Ark, another case that “JP” seemed to forget about when its language was inconvenient to the conspiracy theory. There’s no super-secret multi-level bi-phase state citizenship system; there’s just US citizenship and state citizenship, and you can’t be a state citizen unless you’re a US citizen. (Notice, again, the total lack of any caselaw supporting the conspiracy theory here?)

    This stuff is all fun and games when it’s about making a homemade ID and complaining about drivers’ licenses. People go to jail for tax evasion; google Sean David Morton or Winston Shrout, who were more successful pseudo-lawyer gurus prior to their recent convictions.

    I know most readers of this will dismiss it; part of being a conspiracy theorist is being immune to warnings like this, because hey, it’s all part of the conspiracy, right? But at least consider this: when a guru tells you they have a magic strategy for escaping taxes, ask to see proof that it works. The proof of a legal theory is whether it works in court. There’s a reason JP and Corey have never prevailed when their theories are actually tested. These theories are nonsense.

    If you want to actually learn something about law, do something the gurus never bother to do: crack a book and really study the subject. Even if you don’t agree with mainstream teaching about the constitution, how can you really understand it if you don’t at least know how judges and lawyers read it and talk about it? Here are some very good free classes:


    Your mileage may vary, but I don’t think it says good things about the motivations of wannabe gurus when they give you extremely dangerous tax advice but can’t be bothered to actually study the subject in the real world.

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