What are the Penalties for Frivolous Tax Return Filings?

Frivolous Tax Return Filings and Penalties (Be Careful)

Tax Protestor and Frivolous Claims

One of the most common types of fraud that a US person can commit is tax fraud. Why? Because it does not take much to complete the tax fraud beyond using your computer and your imagination. Unlike other types of fraud, you can facilitate the fraud by artificially reducing your income or increasing your business expenses – if not creating a false business on your tax return to create losses (usually on IRS 1040 Form Schedule C). In recent years, the number of tax protesters who have made frivolous claims is on the rise – as is the number of enforcement actions launched by the IRS. Let’s walk through some of the more common types of arguments that the IRS teams as frivolous arguments.

As provided by the IRS:

The filing of a tax return is voluntary.

• • Some taxpayers assert that they are not required to file federal tax returns because the filing of a tax return is voluntary. Proponents of this contention point to the fact that the IRS tells taxpayers in the Form 1040 instruction book that the tax system is voluntary. Additionally, these taxpayers frequently quote Flora v. United States, 362 U.S. 145, 176 (1960), for the proposition that “[o]ur system of taxation is based upon voluntary assessment and payment, not upon distraint.”

    • The Law: The word “voluntary,” as used in Flora and in IRS publications, refers to our system of allowing taxpayers initially to determine the correct amount of tax and complete the appropriate returns, rather than have the government determine tax for them from the outset. The requirement to file an income tax return is not voluntary and is clearly set forth in sections 6011(a), 6012(a), et seq., and 6072(a) of the Internal Revenue Code. See also Treas. Reg. § 1.6011-1(a).

    • Any taxpayer who has received more than a statutorily determined amount of gross income in a given tax year is obligated to file a return for that tax year. Failure to file a tax return could subject the non-compliant individual to civil and/or criminal penalties, including fines and imprisonment. In United States v. Tedder, 787 F.2d 540, 542 (10th Cir. 1986), the court stated that, “although Treasury regulations establish voluntary compliance as the general method of income tax collection, Congress gave the Secretary of the Treasury the power to enforce the income tax laws through involuntary collection. . . . The IRS’ efforts to obtain compliance with the tax laws are entirely proper.” The IRS warned taxpayers of the consequences of making this frivolous argument in Rev. Rul. 2007-20, 2007-1 C.B. 863 and in Notice 2010-33, 2010-17 I.R.B. 609.

Relevant Case Law:

• • • • Helvering v. Mitchell, 303 U.S. 391, 399 (1938) – the Supreme Court stated that “[i]n assessing income taxes, the Government relies primarily upon the disclosure by the taxpayer of the relevant facts. . . . in his annual return. To ensure full and honest disclosure, to discourage fraudulent attempts to evade the tax, Congress imposes [either criminal or civil] sanctions.”

      • United States v. Tedder, 787 F.2d 540, 542 (10th Cir. 1986) – the Tenth Circuit upheld a conviction for willfully failing to file a return, stating that the premise “that the tax system is somehow ‘voluntary’ . . . is incorrect.”

      • United States v. Richards, 723 F.2d 646, 648 (8th Cir. 1983) – the Eighth Circuit upheld a conviction and fines imposed for willfully failing to file tax returns, stating that the claim that filing a tax return is voluntary is “an imaginative argument, but totally without arguable merit.”

      • United States v. Hartman, 915 F. Supp. 1227, 1230 (M.D. Fla. 1996) – the court held that “[t]he assertion that the filing of an income tax return is voluntary is . . . frivolous.” The court noted that I.R.C. § 6012(a)(1)(A), “requires that every individual who earns a threshold level of income must file a tax return” and that “failure to file an income tax return subjects an individual to criminal penalty.”

        • Other Cases:

          • United States v. Drefke, 707 F.2d 978 (8th Cir. 1983); United States v. SchulzPDF, 529 F. Supp. 2d 341 (N.D.N.Y. 2007); Foryan v. Commissioner, T.C. Memo. 2015-114, 109 T.C.M. (CCH) 1591 (2015); Jones v. Commissioner, T.C. Memo. 2014-101, 107 T.C.M. (CCH) 1495 (2014).

Payment of federal income tax is voluntary.

• • • In a similar vein, some argue that they are not required to pay federal taxes because the payment of federal taxes is voluntary. Proponents of this position argue that our system of taxation is based upon voluntary assessment and payment. They frequently claim that there is no provision in the Internal Revenue Code or any other federal statute that requires them to pay or makes them liable for income taxes, and they demand that the IRS show them the law that imposes tax on their income. They argue that, until the IRS can prove to these taxpayers’ satisfaction the existence and applicability of the income tax laws, they will not report or pay income taxes. These individuals or groups reflexively dismiss any attempt by the IRS to identify the laws, thereby continuing the cycle. The IRS discussed this frivolous position at length and warned taxpayers of the consequences of asserting it in Rev. Rul. 2007-20, 2007-1 C.B. 863 and in Notice 2010-33, 2010-17 I.R.B. 609.

    • The Law: The requirement to pay taxes is not voluntary. Section 1 of the Internal Revenue Code clearly imposes a tax on the taxable income of individuals, estates, and trusts, as determined by the tables set forth in that section. (Section 11 imposes a tax on corporations’ taxable income.)

      • Furthermore, the obligation to pay tax is described in section 6151, which requires taxpayers to submit payment with their tax returns. Failure to pay taxes could subject the non-complying individual to criminal penalties, including fines and imprisonment, as well as civil penalties.

      • In United States v. Drefke, 707 F.2d 978, 981 (8th Cir. 1983), the Eighth Circuit Court of Appeals stated, in discussing section 6151, that “when a tax return is required to be filed, the person so required ‘shall’ pay such taxes to the internal revenue officer with whom the return is filed at the fixed time and place. The sections of the Internal Revenue Code imposed a duty on Drefke to file tax returns and pay the appropriate rate of income tax, a duty which he chose to ignore.” Id. (emphasis omitted).

      • Although courts, in rare instances, have waived civil penalties because they have found that a taxpayer relied on an IRS misstatement or wrongful misleading silence with respect to a factual matter, there have been no cases in which the IRS’s lack of response to a taxpayer’s inquiry has relieved the taxpayer of the duty to pay tax due under the law.

Relevant Case Law:

• • • • United States v. Schiff, 379 F.3d 621, 631 (9th Cir. 2004) – the Ninth Circuit affirmed a federal district court’s preliminary injunction barring Irwin Schiff, Cynthia Neun, and Lawrence N. Cohen from selling a tax scheme that fraudulently claimed that payment of federal income tax is voluntary. In subsequent criminal trials, Schiff, Neun, and Cohen were convicted of violating several criminal laws relating to their scheme. See 2005 TNT 206-18. Schiff received a sentence of more than 12 years in prison for tax evasion and was ordered to pay more than $4.2 million in restitution to the IRS; Neun received a sentence of nearly 6 years and was ordered to pay $1.1 million in restitution to the IRS; and Cohen received a sentence of nearly 3 years and was ordered to pay $480,000 in restitution to the IRS. See Professional Tax Resister Sentenced to More
        Than 12 Years in Prison for Tax Fraud.

      • Keenan v. Commissioner, 233 F. App’x 719, 720 (9th Cir. 2007) – the Ninth Circuit stated that “assertions that the tax system is voluntary” are frivolous.

      • Banat v. Commissioner, 80 F. App’x 705, 706–07 (2d Cir. 2003) – the Second Circuit upheld $2,000 in sanctions against a taxpayer because his argument that “the payment of income taxes was voluntary” was “contrary to well-established law and thus was frivolous.”

      • United States v. Gerads, 999 F.2d 1255, 1256 (8th Cir. 1993) – the Eighth Circuit stated that the “[taxpayers’] claim that payment of federal income tax is voluntary clearly lacks substance” and imposed sanctions in the amount of $1,500 “for bringing this frivolous appeal based on discredited, tax-protester arguments.”

      • Wilcox v. Commissioner, 848 F.2d 1007, 1009 (9th Cir. 1988) – the Ninth Circuit rejected Wilcox’s argument that payment of taxes is voluntary for American citizens and imposed a $1,500 penalty against Wilcox for raising frivolous claims.

      • United States v. Schulz, 529 F. Supp. 2d 341, 357–58 (N.D.N.Y. 2007) – the court permanently barred Robert Schulz and his organizations, We the People Congress and We the People Foundation, from promoting a tax scheme that helped employers and employees improperly stop tax withholding from wages on the false premise that federal income taxation is voluntary.

      • Jones v. Commissioner, T.C. Memo. 2014-101, 107 T.C.M. (CCH) 1495 (2014) – the court imposed several sanctions of $25,000 against a taxpayer who argued, amongst other frivolous arguments, that “the Internal Revenue Code does not establish any liability for the payment of Federal income tax.”

        • Other Cases:

          • Schiff v. United States, 919 F.2d 830 (2d Cir. 1990); United States v. Berryman, 112 A.F.T.R.2d (RIA) 2013-6282 (D. Colo. 2013); United States v. Sieloff, 104 A.F.T.R.2d (RIA) 2009-5067 (M.D. Fla. 2009); United States v. Melone, 111 A.F.T.R.2d (RIA) 2013-1369 (D. Mass. 2013); Foryan v. Commissioner, T.C. Memo. 2015-114, 109 T.C.M. (CCH) 1591 (2015); Horowitz v. Commissioner, T.C. Memo. 2006-91, 91 T.C.M. (CCH) 1120 (2006).

Taxpayers can reduce their federal income tax liability by filing a “zero return.”

• • • Some taxpayers attempt to reduce their federal income tax liability by filing a tax return that reports no income and no tax liability (a “zero return”) even though they have taxable income. Many of these taxpayers also request a refund of any taxes withheld by an employer. These individuals typically attach to the zero return a “corrected” Form W-2 or another information return that reports income and income tax withholding, relying on one or more of the frivolous arguments discussed throughout this outline to support their position.

      • The Law: A taxpayer that has taxable income cannot legally avoid income tax by filing a zero return. Section 61 provides that gross income includes all income from whatever source derived, including compensation for services. Courts have repeatedly penalized taxpayers for making the frivolous argument that the filing of a zero return can allow a taxpayer to avoid income tax liability or permit a refund of tax withheld by an employer. Courts have also imposed the frivolous return and failure to file penalties because these forms do not evidence an honest and reasonable attempt to satisfy the tax laws or contain sufficient data to calculate the tax liability, which are necessary elements of a valid tax return. See Beard v. Commissioner, 82 T.C. 766, 777–79 (1984).  The IRS warned taxpayers of the consequences of making this frivolous argument in Rev. Rul. 2004-34, 2004-1 C.B. 619. Furthermore, the inclusion of the phase “nunc pro tunc” or other legal phrases on a return, has no legal effect and does not serve to validate a zero return. See Rev. Rul. 2006-17, 2006-1 C.B. 748; Notice 2010-33, 2010-17 I.R.B. 609.

Relevant Case Law:

• • • • Kelly v. United States, 789 F.2d 94, 97 (1st Cir. 1986) – the First Circuit held that the taxpayer’s failure to report any income from wages, the “unexplained designation of his Form W-2 as ‘Incorrect’, and his attempt to deduct as a cost of labor expense on Schedule C an amount almost identical to the amount of wages on Form W-2” established that his position (that compensation for his labor was not “wages” or taxable income) was both incorrect and frivolous.

      • Sisemore v. United States, 797 F.2d 268, 270 (6th Cir. 1986) – the Sixth Circuit upheld the assessment of a frivolous-return penalty on taxpayers because “their amended return [showing no income] on its face clearly showed that their assessment of their taxes was substantially incorrect and that their position on the matter [that their wages were zero because received in equal exchange for their labor] was frivolous.”

      • Olson v. United States, 760 F.2d 1003, 1005 (9th Cir. 1985) – the Ninth Circuit held that the district court properly found the taxpayer liable for a penalty for filing a frivolous tax return because he listed his wages as zero and attempted “to escape tax by deducting his wages as ‘cost of labor’ and by claiming that he had obtained no privilege from a governmental agency[.]”

      • Davis v. United States Government, 742 F.2d 171, 172 (5th Cir. 1984) – the Fifth Circuit held as clearly frivolous the taxpayers’ reasons (“rejected . . . time and time again”) for reporting no wages and no gross income, when they had received over $60,000 in earnings or other compensation as evidenced by the Forms W-2 attached to their Form 1040.

      • United States v. Lovely, 420 F. Supp. 3d 398, 408 (M.D.N.C. 2019) – holding a taxpayer liable for civil penalties because his “primary claim—that as a matter of law he made zero taxable income despite being employed—is incorrect as it is established beyond doubt that employees must generally pay federal income tax on their salaries.”

      • United States v. Melone, 111 A.F.T.R.2d (RIA) 2013-1369 (D. Mass. 2013) – the court held that the taxpayer, who filed “zero returns,” falsely asserting he made no income, was liable for civil penalties.

      • United States v. Ballard, 101 A.F.T.R.2d (RIA) 1241, (N.D. Tex. 2008) – the court permanently enjoined a tax return preparer from engaging in further tax return preparation or tax advice because he prepared federal income tax returns for customers that falsely showed nothing but zeroes.

      • Bonaccorso v. Commissioner, T.C. Memo. 2005-278, 90 T.C.M. (CCH) 554 (2005) – the taxpayer filed zero returns based on the argument that he found no Code section that made him liable for any income tax. The court held that the petitioner’s argument was frivolous, citing to section 1 (imposes an income tax), section 63 (defines taxable income as gross income minus deductions), and section 61 (defines gross income). The court also imposed a $10,000 sanction under section 6673 for making frivolous arguments.

        • Other Cases:

          • United States v. Schiff, 544 F. App’x 729 (9th Cir. 2013); Leyva v. Commissioner, 483 F. App’x 371 (9th Cir. 2012); United States v. Cohen, 262 F. App’x 14 (9th Cir. 2007); United States v. Conces, 507 F.3d 1028 (6th Cir. 2007); United States v. Schiff, 379 F.3d 621 (9th Cir. 2004); United States v. Rickman, 638 F.2d 182, 184 (10th Cir. 1980); United States v. Nichols, 115 A.F.T.R.2d (RIA) 2015-1971 (D. Wash. 2015); United States v. Hill, 97 A.F.T.R.2d (RIA) 2006-548 (D. Ariz. 2005); Little v. United States, 96 A.F.T.R.2d (RIA) 2005-7086 (M.D.N.C. 2005); Schultz v. United States, 95 A.F.T.R.2d (RIA) 2005-1977 (W.D. Mich. 2005); Smith v. Commissioner, 121 T.C.M. (CCH) 1195 (T.C. 2021), appeal dismissed, No. 21-71138, 2021 WL 6200759 (9th Cir. Oct. 12, 2021); Waltner v. Commissioner, T.C. Memo. 2015-146, T.C.M. (RIA) 2015-146 (2015); Hill v. Commissioner, T.C. Memo. 2014-101, 108 T.C.M. (CCH) 12 (2014); Shirley v. Commissioner, T.C. Memo. 2014-10, 107 T.C.M. (CCH) 1057 (2014); Waltner v. United States, 98 Fed. Cl. 737 (2011); Oman v. Commissioner, T.C. Memo. 2010-276, 100 T.C.M. (CCH) 548 (2010); Blaga v. Commissioner, T.C. Memo. 2010-170, 100 T.C.M. (CCH) 91 (2010).

The IRS must prepare federal tax returns for a person who fails to file.

• • • Proponents of this argument contend that section 6020(b) obligates the IRS to prepare and sign under penalties of perjury a federal tax return for a person who does not file a return. Those who subscribe to this contention claim that they are not required to file a return for themselves.

    • The Law: Section 6020(b) merely provides the IRS with a mechanism for determining the tax liability of a taxpayer who has failed to file a return. Section 6020(b) does not require the IRS to prepare or sign under penalties of perjury tax returns for persons who do not file, and it does not excuse the taxpayer from civil penalties or criminal liability for failure to file.

Relevant Case Law:

• • • Jahn v. Commissioner, 431 F. App’x 210, 212 (3d Cir. 2011) – the Third Circuit held that even if the IRS prepares a return under section 6020(b), this “does not relieve the nonfiling taxpayer of his duty to file . . . and does not equate to a filed return unless signed by the taxpayer.” The court found arguments to the contrary frivolous.

    • United States v. Cheek, 3 F.3d 1057, 1063 (7th Cir. 1993) – the Seventh Circuit upheld the district court’s instruction to the jury that the defendant’s belief that section 6020 permitted the Secretary of the Treasury to prepare a tax return for a person did not negate “in any way” the defendant’s obligation to file a tax return.

    • In re Bergstrom, 949 F.2d 341, 343 (10th Cir. 1991) – the Tenth Circuit recognized that “[c]ourts have held that 26 U.S.C. § 6020(b) provides the IRS with some recourse if a taxpayer fails to file a return as required under 26 U.S.C. § 6012, but that it does not excuse a taxpayer from the filing requirement.”

    • Schiff v. United States, 919 F.2d 830, 832 (2d Cir. 1990) – the Second Circuit rejected the taxpayer’s argument that the IRS must prepare a substitute return pursuant to section 6020(b) before assessing deficient taxes, stating that “[t]here is no requirement that the IRS complete a substitute return.”

    • Moore v. Commissioner, 722 F.2d 193, 196 (5th Cir. 1984) – the Fifth Circuit stated that “section [6020(b)] provides the Secretary with some recourse should a taxpayer fail to fulfill his statutory obligation to file a return, and does not supplant the taxpayer’s original obligation to file established by 26 U.S.C. § 6012.”

    • Stewart v. Commissioner, T.C. Memo. 2005-212, 90 T.C.M. (CCH) 269 (2005) – the court found that the IRS need not prepare a substitute return in order to determine a deficiency for a taxpayer who has not filed a return for the year at issue.

      • Other Cases:

        • United States v. Barnett, 945 F.2d 1296 (5th Cir. 1991); Smith v. Commissioner, 118 T.C.M. (CCH) 208 (T.C. 2019), aff’d sub nom. Smith, v. Commissioner, No. 20-70698, 2022 WL 576011 (9th Cir. Feb. 25, 2022).

Compliance with an administrative summons issued by the IRS is voluntary.

• • • Some summoned parties may assert that they are not required to respond to or comply with an administrative summons issued by the IRS. Proponents of this position argue that a summons thus can be ignored. The Second Circuit’s opinion in Schulz v. IRS, 413 F.3d 297 (2d Cir. 2005) (“Schulz II“), discussed below, is often inappropriately cited to support this proposition.

      • The Law: A summons is an administrative device with which the IRS can summon persons to appear, testify, and produce documents. The IRS is statutorily authorized to inquire about any person who may be liable to pay any internal revenue tax, and to summon a witness to testify or to produce books, papers, records, or other data that may be relevant or material to an investigation. I.R.C. § 7602; United States v. Arthur Young & Co., 465 U.S. 805, 816 (1984); United States v. Powell, 379 U.S. 48 (1964). Sections 7402(b) and 7604(a) of the Internal Revenue Code grant jurisdiction to district courts to enforce a summons, and section 7604(b) governs the general enforcement of summonses by the IRS.

      • Section 7604(b) allows courts to issue attachments, consistent with the law of contempt, to ensure attendance at an enforcement hearing “[i]f the taxpayer has contumaciously refused to comply with the administrative summons and the [IRS] fears he may flee the jurisdiction[.]” Powell, 379 U.S. at 58 n.18; see also Reisman v. Caplin, 375 U.S. 440, 448–49 (1964) (noting that section 7604(b) actions are in the nature of contempt proceedings against persons who “wholly made default or contumaciously refused to comply” with an administrative summons issued by the IRS). Under section 7604(b), the courts may also impose contempt sanctions for disobedience of an IRS summons.

      • Failure to comply with an IRS administrative summons also could subject the non-complying individual to criminal penalties, including fines and imprisonment. I.R.C. § 7210. While the Second Circuit held in Schulz II that, for due process reasons, the government must seek judicial review and enforcement of the underlying summons and to provide an intervening opportunity to comply with a court order of enforcement before seeking sanctions for noncompliance, the court’s opinion did not foreclose the availability of prosecution under section 7210.

Relevant Case Law:

• • • Schulz v. IRS, 413 F.3d 297, 304 (2d Cir. 2005) (“Schulz II“) – the Second Circuit upheld its prior per curiam opinion, reported at Schulz v. IRS, 395 F.3d 463 (2d Cir. 2005) (“Schulz I“), and held that, based upon constitutional due process concerns, an indictment under section 7210 shall not lie and contempt sanctions under section 7604(b) shall not be levied based on disobedience of an IRS summons until that summons has been enforced by a federal court order and the summoned party, after having been given a reasonable opportunity to comply with the court’s order, has refused. The court noted that “[n]either this opinion nor Schulz I prohibits the issuance of pre-hearing attachments consistent with due process and the law of contempts.”

    • United States v. Becker, 58-1 U.S.T.C. ¶ 9403 (S.D.N.Y. 1958) – when Becker failed to produce certain books and records specified in an IRS summons, claiming that they had been destroyed by fire, the court found, based upon the evidence (including the fact that some of the specified books were subsequently produced in compliance with a grand jury subpoena), that Becker willfully and knowingly neglected to produce information called for by a summons in violation of section 7210.

      • Other Cases:

        • United States v. Sanders, 110 A.F.T.R.2d (RIA) 2012-5910 (S.D. Ill. 2011).

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