The Law That Never Was: The Fraud of the 16th Amendment and Personal Income Tax is a 1985 book by William J. Benson and Martin J. "Red" Beckman which claims that the Sixteenth Amendment to the United States Constitution, commonly known as the income tax amendment, was never properly ratified. In 2007, and again in 2009, Benson's contentions were ruled to be fraudulent.
Background
Under Article V of the U.S. Constitution, an amendment proposed by Congress must be ratified by three-fourths of the states to become part of the Constitution. The Article permits Congress to specify, for each amendment, whether the ratification must be by each state's legislature or by a constitutional convention in each state; for the Sixteenth Amendment, Congress specified ratification by the legislatures. There were 48 states in the Union in 1913 – the year when the Sixteenth Amendment was finally ratified – which meant that the Amendment required ratification by the legislatures of 36 states to become effective. In February 1913, Secretary of State Philander C. Knox issued a proclamation that 38 states had ratified the amendment. According to Congressional analysis, a total of 42 states had ratified the amendment as of 1992.Senate Document No. 103-6 (1992 ed.), Analysis and Interpretation of the Constitution; Annotations of Cases Decided by the Supreme Court of the United States (United States Government Printing Office).
Contentions
Prior to Benson, the "non-ratification" argument was presented by James Walter Scott in the 1975 case of United States v. Scott, some sixty-two years after the ratification. Scott's argument was to no avail; he was convicted of willful failure to file federal income tax returns for the years 1969 through 1972, and the conviction was upheld by the United States Court of Appeals for the Ninth Circuit.United States v. Scott, 521 F.2d 1188 (9th Cir. 1975). In a 1977 case involving a tax protester named Bob Tammen, a U.S. District Court noted that Tammen was involved with a group called "United Tax Action Patriots", which took the position "that the Sixteenth Amendment was improperly passed and therefore invalid". However, the specific issue of the validity of the ratification was neither presented to nor decided by the court.See Ex parte Tammen, 438 F. Supp. 349, 78-1 U.S. Tax Cas. (CCH) ¶ 9302 (N.D. Tex. 1977). William Benson's book relates how, in 1984, nine years after the Scott case and seventy-one years after the ratification was proclaimed, Benson began a research project to investigate the ratification process by traveling to the National Archives and the capitols of various New England states to review documents relating to the ratification of the Amendment.
Benson found variations in wording, punctuation, capitalization, and pluralization in the language of the Amendment as ratified by many states. He used the changes as part of the basis for his contention that those states had not properly ratified the Amendment. Benson further claimed to have found documents suggesting that some states that had been certified as having ratified the Amendment never voted to ratify it, or voted against ratification. Benson claimed that no states, or only a few states (variously reported as two states or four states), had properly ratified the Amendment.
In his book, Benson made the following claims:
Seven states (Connecticut, Florida, Oregon, Pennsylvania, Rhode Island, Utah, Virginia) did not ratify the amendment, and it was reported as such. Two states (Kentucky and Tennessee) did not ratify the amendment, but Secretary Knox reported that they did. Eight states (Delaware, Michigan, Nevada, New Hampshire, South Dakota, Tennessee, Vermont and Wyoming) were reported by Secretary Knox as having ratified the amendment, but the States actually have missing or incomplete records of the ratification procedures or votes, and there is no conclusive record that they ratified the amendment or reported any ratification to the Secretary of State. Six states (Idaho, Iowa, Kentucky, Minnesota, Missouri, Washington) did approve the amendment, but the Governor or another official who was required by their respective state constitutions to sign the legislation into law did not sign the legislation. In twenty-five states (Arizona, Arkansas, California, Colorado, Georgia, Idaho, Illinois, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, New Jersey, New Mexico, North Dakota, Tennessee, Texas, Vermont, Washington, West Virginia and Wyoming), the legislature violated a provision of its state constitution during the ratification process. Twenty-nine states (Arizona, Arkansas, California, Colorado, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Jersey, New Mexico, New York, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Vermont, West Virginia and Wyoming) violated "state law" or procedural rules during the ratification process.
Additionally, Benson asserted that:
Twenty-two states approved the amendment, but with changes in wording, and the inexact version was accepted as a ratification of the original version. One state approved the amendment, but with variations in spelling, and the inexact version was accepted as a ratification of the original version. At least twenty-six states approved the amendment, but with changes in punctuation, and the inexact version was accepted as a ratification of the original version.
Benson asserted that the Oklahoma State Legislature changed the wording of the amendment they approved so that it meant the opposite of the original amendment as it was submitted to the States by Congress, but that Secretary Knox counted Oklahoma as having approved the amendment.
Benson also asserted, as an example of a state's violation of its own Constitution, laws, or procedural rules, the claim that the Tennessee State Constitution prohibited the legislature from acting on any proposed amendment to the U.S. Constitution submitted by Congress until after the next state legislative elections. According to Benson, the Tennessee legislature acted on the proposed 16th amendment the same month it was received (prior to any new state legislative elections).
Legal status of Benson's claims
The Benson book was published in 1985. The earliest reported court cases where the book was mentioned appear to be United States v. House617 F. Supp. 237, 87-2 U.S. Tax Cas. (CCH) ¶ 9562 (W.D. Mich. 1985). and United States v. Wojtas.611 F. Supp. 118 (N.D. Ill. 1985). Benson testified unsuccessfully in the House case. In the latter case, defendant Wayne Wojtas was unsuccessful in his attempt to use Benson's theory to have his indictment for failure to file federal tax returns dismissed. In the case the judge ruled that Benson's evidence was inadmissible, stating that:
Wojtas was convicted, sentenced to prison, and released in August 1986.Wayne Francis Wojtas, inmate # 93604-024, Federal Bureau of Prisons, U.S. Dep't of Justice, at .
Benson's claim was also rejected in Miller v. United States.868 F.2d 236 89-1 U.S. Tax Cas. (CCH) ¶ 9184 (7th Cir. 1989) (per curiam). The court stated, "We find it hard to understand why the long and unbroken line of cases upholding the constitutionality of the Sixteenth Amendment generally, Brushaber v. Union Pacific Railroad Company ... and those specifically rejecting the argument advanced in The Law That Never Was, have not persuaded Miller and his compatriots to seek a more effective forum for airing their attack on the federal income tax structure." The court then sanctioned the litigants for advancing a "patently frivolous" position.
Similar "Sixteenth Amendment arguments" have been uniformly rejected by the courts in other cases including United States v. Thomas.788 F.2d 1250, 1252 (7th Cir. 1986), cert. denied, 479 U.S. 853, 107 S. Ct. 187 (1986), at . See also United States v. Thomas, 934 F.2d 840 (7th Cir. 1991), at . In Thomas the court, in affirming the tax convictions of Kenneth L. Thomas, referred to Benson's book and noted that the errors found by Benson had already been investigated by Secretary of State Knox at the time of ratification of the Sixteenth Amendment, and had been determined to be insignificant. (See Tax protester constitutional arguments.)
Arguments that the Sixteenth Amendment was not properly ratified were also rejected in Sisk v. Commissioner;791 F.2d 58, 86-1 U.S. Tax Cas. (CCH) ¶ 9433 (6th Cir. 1986). United States v. Sitka;845 F.2d 43, 88-1 U.S. Tax Cas. (CCH) ¶ 9308 (2d Cir.), cert. denied, 488 U.S. 827 (1988). and United States v. Stahl.792 F.2d 1438, 86-2 U.S. Tax Cas. (CCH) ¶ 9518 (9th Cir. 1986), cert. denied, 107 S. Ct. 888 (1987). See generally United States v. Hempfling, 431 F. Supp. 2d 1069 (E.D. Calif. 2006). The non-ratification argument has also been deemed legally frivolous in Brown v. Commissioner53 T.C.M. (CCH) 94, T.C. Memo 1987-78, CCH Dec. 43,696(M) (1987). and Lysiak v. Commissioner.816 F.2d 311, 87-1 U.S. Tax Cas. (CCH) ¶ 9296 (7th Cir. 1987).
The argument that the Sixteenth Amendment was not ratified, and variations of this argument, have been officially identified as legally frivolous federal income tax return positions for purposes of the $5,000 frivolous tax return penalty imposed under Internal Revenue Code section 6702(a)., as amended by section 407 of the Tax Relief and Health Care Act of 2006, Pub. L. No. 109-432, 120 Stat. 2922 (Dec. 20, 2006). See Notice 2008-14, item 9j, I.R.B. 2008-4 (Jan. 14, 2008), Internal Revenue Service, U.S. Department of the Treasury (superseding Notice 2007-30).
Benson's federal income tax problems
In United States v. Benson,941 F.2d 598, 91-2 U.S. Tax Cas. (CCH) ¶ 50,437 (7th Cir. 1991). a criminal case, Benson himself raised the Sixteenth Amendment argument, which was rejected by the United States Court of Appeals for the Seventh Circuit. In this phase of the case, his conviction for tax evasion and willful failure to file tax returns was overturned on other grounds and the case was remanded to the trial court.
Upon retrial, Benson was again convicted of tax evasion and willful failure to file tax returns, and his conviction was upheld on appeal. The conduct for which he was convicted involved over $100,000 of income he did not report on Federal income tax returns. He was sentenced to four years in prison and five years of probation.United States v. Benson, 67 F.3d 641, 95-2 U.S. Tax Cas. (CCH) ¶ 50,540 (7th Cir. 1995).
Benson continued to promote his views. Until early 2008, Benson included verbiage on his web sitein quotation marksthat he attributed to the text of the U.S. Supreme Court decision in Brushaber v. Union Pacific Railroad, an early case interpreting the Amendment. He quoted the Court as saying that the Sixteenth Amendment "did not change the constitutional limitations which forbid any direct taxation of individuals."Retrieved on 22 November 2006 from http://www.thelawthatneverwas.com/new/ratification.asp The text of the Court's decision does not contain any such quotation.See Brushaber v. Union Pacific Railroad, 240 U.S. 1 (1916); text available at http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=240&page=1 No U.S. Federal court has ever ruled that any provision of the United States Constitution forbids any direct taxation of individuals. Benson apparently removed the material after a court order was issued regarding his materials.