| LEGAL
DISCLAIMER I am not a Tax Lawyer, Nor do I play Dan Evans on the internet. I am not a Certified Public Accountant, Nor do I play Paul Thomas on the internet. I am not an Enrolled Agent, Nor do I play Richard Macdonald on the internet. DO NOT TAKE MY WORD FOR ANYTHING ON THIS PAGE. Go look it up for yourself. |
Shyster1040 v. Dale E. |
| After
goading Shyster1040 by posting the following text, instead of
giving me that "horsewhipping" he promised in the here and now,
Shyster1040 totally ignored his present errors presented to dig
something up out of the archives. <Shrug> It's a response
and it's in the channel I created specifically for debate with
Shyster1040 and it gives me something to work with. In his second attack, he makes the error of using sophistry in an attempt to change meanings to suit his needs as a Legal Plunderer. |
| Incorrectly
asserts that an individual must give a TIN to his customer. http://www.synapticsparks.info/them/shyster.html Promises to "horsewhip" me, but runs away like a coward. http://www.synapticsparks.info/them/shyster2.html Errs on 26 USC 6151 (and a few others.) http://www.synapticsparks.info/them/shyster3.html |
| Or, how about this one, just four
days later, on October 31, 2005: Re: Dale, your only Corporations have income is a loser also. by "Shyster1040" <Shyster1040@nospamhotmail.com> Oct 31, 2005 at 01:03 PM First point - the question was about your (erroneous) claim that only corporations have "income" under the Constitution; it was not about withholding of income tax at source on wages. So, why does your "answer" only concern itself with such withholding? Where's your "answer" in support of your claim about only corporations having income. But on to the main point - refuting another one of your dumb claims. Dear reader, Please keep in mind that the first time I am reading this post of Shyster1040's is on April 4, 2007 as I address the points made. Geez, Dale. Once again, you demonstrate your pathetic inability to read the law. Your opinion means nothing. "Include" is not, repeat not, a term of exclusion - it does not exclude otherwise valid members of the set under discussion (in this case employees) simply by failing to list them. The above statement contains multiple assertions. They will be addressed separately. Assertion #1: Include is not a term of exclusion. Refutation: Black's law dictionary as found on the internet: "Include. (Lat. Inclaudere, to shut in. keep within.) To confine within, hold as an inclosure. take in, attain, shut up, contain, inclose, comprise, comprehend, embrase, involve. Term may, according to context, express an enlargement and have the meaning of and or in addition to, or merely specify a particular thing already included within general words theretofore used. "Including" within statute is interpreted as a word of enlargement or of illustrative application as well as a word of limitation. Premier Products Co. v. Cameron, 240 Or. 123, 400 P.2d 227, 228." Include: "To confine within." Much like the fence of a corral (an enclosure for confining livestock) contains horses within the corral, the word "includes" is the fence that contains certain items within a set. Either a horse is inside a corral, or a horse is outside a corral. Either a horse is included within a corral, or the horse is EXCLUDED from a corral. Likewise, either an item is inside a set (included), or an item is outside a set (excluded). In either case, there is no third location. The word "includes" draws the line between what is included and what is excluded. Your assertion that ""Include" is not, repeat not, a term of exclusion" fails on its own merits. "Term may, according to context, express an enlargement..." But then again, it may "not" express enlargement. KEY WORD: "MAY" 1. To be allowed or permitted to. 2. Used to indicate a certain measure of likelihood or possibility. USAGE NOTE: Generations of grammarians and schoolteachers have insisted that can should be used only to express the capacity to do something, and that may must be used to express permission. [American Heritage Electronic Dictionary] ""Including" within statute is interpreted as a word of enlargement or of illustrative application AS WELL AS A WORD OF LIMITATION." Again, "according to context". A word of limitation is a word of EXCLUSION. Still your assertion that ""Include" is not, repeat not, a term of exclusion" fails on its own merits. Montello Salt Company vs Utah [221 US 452]: ""The determining word is, of course the word 'including.' It may have the sense of addition, as we have seen, and of 'also;' but, we have also seen, 'may merely specify particularly that which belongs to the genus.’… " Again, the "includes" or "including" words may, or may NOT be expansive. Montello Salt Company vs Utah [221 US 452]: The [supreme] court [of the state] also considered that the word 'including' was used as a word of enlargement, the learned [supreme] court [of the state] being of opinion that such was its ordinary sense. With this we cannot concur. It is its exceptional sense, as the dictionaries and cases indicate.” Enlargement is NOT the ordinary sense of the word. Assertion #2: "Include" does not exclude otherwise valid members of the set under discussion. This statement is correct and we are in 100% agreement on this point. Montello Salt Company vs Utah [221 US 452]: ""The determining word is, of course the word 'including.' It [] 'may merely specify particularly that which belongs to the genus.’… " Set, Class, or Genus (2. Logic. A class of objects divided into subordinate species having certain common attributes. 3. A class, group, or kind with common attributes.) Assertion #3: The set (genus, class, group, or kind) under discussion is "(in this case employees)". You err in your assertion as to what is the "set under discussion". The set (genus, class, group, or kind) under discussion is the set covered by the term "employee" in section 3401(d) of the Internal Revenue Code. I will return to this specific term after I dispatch the false 7701(c) argument which follows. Section 7701(c) - Includes and Including. - The terms "includes" and "including" when used in a definition contained in this title shall not be deemed to exclude other things otherwise within the meaning of the term defined. Shyster1040 correctly quoted section 7701(c). The following examination of section 7701(c) will make clear Shyster1040's error in relying upon section 7701(c) as proof for his seven assertions that follow. The words of section 7701(c) are a statutory statement of the following rule of statutory construction: Ejusdem generis (eh-youse-dem generous) v adj. Latin for "of the same kind," used to interpret loosely written statutes. Where a law lists specific classes of persons or things and then refers to them in general, the general statements only apply to the same kind of persons or things specifically listed. Example: if a law refers to automobiles, trucks, tractors, motorcycles and other motor-powered vehicles, "vehicles" would not include airplanes, since the list was of land-based transportation. ONLY when a CLASS is defined can items matching the class properties be included (enclosed) in that class without specific enumeration. Then, and ONLY then, can the use of includes and including be expansive in nature. And the expansion can only expand to "enclose" items of the same CLASS. It does NOT "enclose" items not in the same class. Thus even as a term of expansion, includes and including are terms of LIMITED expansion. The following rule of statutory construction acknowledges the prior rule of statutory construction. Expressio unius est exclusio alterius One of the linguistic canons applicable to the construction of legislation. By expressing one thing is [by implication] to exclude another. There is no room for the application of this principle where some reason other than the intention to exclude certain items exists for the express mention in question. Thus what is said may be intended merely as an example or be included for abundance of caution or for some other reason; or the thing supposed to have been impliedly excluded may not have existed at the passing of the enactment. "What is said may be intended as an example", and as the prior rule observes, a partial list may be an example of a class of items. Per Shyster1040's statement above; ""Include" [] does not exclude otherwise valid members of the set under discussion", Shyster1040 agrees. In this case, the "set" (genus, class, group, or kind is the "term" "employee" defined in section 3401(c). Returning to, and parsing 7701(c) as it applies to the section 3401(c) definition of the term "employee": Includes and Including. - The terms "includes" and "including" when used in [the] definition [of employee] contained in [section 3401 of] this title shall not be deemed to exclude other things otherwise within the meaning of the term [employee] defined. Returning to, and parsing the ejusdem generis rule of statutory construction as it applies to the section 3401(c) definition of the term "employee": Where a law lists [a] specific class[] of [employee] and then refers to [it] in general, the general statements only apply to the same kind of [employee] specifically listed. Returning to, and parsing Shyster1040's statement as it applies to the section 3401(c) definition of the term "employee": "Include" [] does not exclude otherwise valid members of the set [(genus, class, group, or kind) of employee] under discussion. "Designatio unius est exclusio alterius, et expressum facit cessare tacitum: The designation of one is the exclusion of the other; and what is expressed prevails over what is implied." Black's 7th edition. And of course, even Black's can be parsed as it applies to the section 3401(c) definition of the term "employee": The designation of one [class of employee] is the exclusion of the other [class of employee]; and what is expressed prevails over what is implied." Internal Revenue Code Sec. 3401. Definitions (c) Employee For purposes of this chapter, the term "employee" includes an officer, employee, or elected official of the United States, a State, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing. The term "employee" also includes an officer of a corporation. The corral "encloses" a CLASS. The CLASS is defined by the list of items in the first sentence. The first sentence DOES NOT enclose any item other than a government paid worker. The second sentence is the proper usage for adding to a class already defined. The term "employee" includes; (encloses; corrals);
Gould v. Gould, 245 U.S. 151 (1917)
Since all the above natural persons listed in section 3401(c) are already employees "in common parlance", there is NO REASON for the definition given in section 3401(c) because employees "in common parlance" already contains the above listed entities. Therefore, just as shown above, the CLASS of employees defined is the CLASS of GOVERNMENT employees. Your assertions fail upon the application of logic, in addition to their failure based upon a proper understanding of the use of "includes" and "including" to define a CLASS of items. Assertion #1: Geez Dale. Guess what - that means that whatever the term "employee" means in common parlance, it also has that meaning for purposes of the Code. Assertion #2: Thus, if you are a common-law employee under the common-law as applied under the state law of a particular state, then you are an "employee" for purposes of the Code because the term "employee," in common parlance, includes persons who are common-law employees. Assertion #3: So, you lose. Assertion #4: Since anyone who would be classified as a common-law employee under their respective state law is an "employee" for purposes of the Code, they have "wages" for purposes of chapter 24. Assertion #5: Know what that means? It means that if you would qualify as a common-law employee, then you have "wages" and are subject to mandatory withholding of income at source. Assertion #6: Since a common-law employee has "wages," it follows ineluctably that they are not making "voluntary withholding agreements" with their employers. Assertion #7: Thus, your "answer" is not an answer at all, but merely another example of you demonstrating your singular incapacity to understand any part of the Code (or the law as a general matter). <Laughter echoes through the Eastman home.> Which brings me to a related point. Did you notice that the language of Code section 3401(a) is limited in its scope? As a matter of fact, I did. TITLE 26 - INTERNAL REVENUE CODE Subtitle C - Employment Taxes CHAPTER 24 - COLLECTION OF INCOME TAX AT SOURCE ON WAGES Sec. 3401. Definitions -STATUTE- (a) Wages For purposes of this chapter, the term "wages" means all remuneration (other than fees paid to a public official) for services performed by an employee for his employer, including the cash value of all remuneration (including benefits) paid in any medium other than cash; except that such term shall not include remuneration paid - [Exclusions omitted as having no bearing on the issue at hand.] Its scope is limited to government employees, since the term "wages" is defined by the definitions provided in chapter 24 for "employees" and "employers". It says, "for purposes of this chapter," and as you were so kind to include in your oh-so-snazzy graphic, Code section 3401 is located in "Chapter 24" of Subtitle C of the Code. You are right on top of things again as usual. <Laughing again echoes through the Eastman home.> By contrast, the imposition of the tax on income, and the definition of what is gross income, occurs under Chapter 1 of Subtitle A of the Code. <sarcasm> I just can't fool you. </sarcasm> TITLE 26 - INTERNAL REVENUE CODE Subtitle A - Income Taxes CHAPTER 1 - NORMAL TAXES AND SURTAXES Subchapter A - Determination of Tax Liability PART IV - CREDITS AGAINST TAX Subpart C - Refundable Credits -HEAD- Sec. 31. Tax withheld on wages -STATUTE- (a) Wage withholding for income tax purposes (1) In general The amount withheld AS TAX under chapter 24 shall be allowed to the recipient of the income as a credit against the tax imposed by this subtitle. Allcap emphasis mine. TITLE 26 - INTERNAL REVENUE CODE Subtitle C - Employment Taxes CHAPTER 24 - COLLECTION OF INCOME TAX AT SOURCE ON WAGES -HEAD- Sec. 3402. Income tax collected at source -STATUTE- (a) Requirement of withholding (1) In general Except as otherwise provided in this section, every employer making payment of wages shall deduct and withhold upon such wages a tax determined in accordance with tables or computational procedures prescribed by the Secretary. Only government "EMPLOYEES" are paid "WAGES" per the definitions of section 3401. Only government "EMPLOYERS" pay "WAGES" per the definitions of section 3401. Therefore, Only government "EMPLOYEES" are required to have a Subtitle A tax deducted and withheld per the tables prescribed by the Secretary. Here is the parsed version of section 3402 with the definitions placed in the section in lieu of the terms they define: Except as otherwise provided in this section, every [person for whom an individual performs or performed any service, of whatever nature, as the employee of such person] making payment of [remuneration for services performed by [an officer of the United States; an employee of the United States; an elected official of the United States; an officer of the District of Columbia; an employee of the District of Columbia; an elected official of the District of Columbia; an officer of a political subdivision of the United States; an employee of a political subdivision of the United States; an elected official of a political subdivision of the United States; an officer of a political subdivision of the District of Columbia; an employee of a political subdivision of the District of Columbia; an elected official of a political subdivision of the District of Columbia; an officer of a corporation] for his employer] shall deduct and withhold upon such wages a tax determined in accordance with tables or computational procedures prescribed by the Secretary. Guess what Dale, that means that, by its own terms, the definition of "wages" in Section 3401(a) applies only to Chapter 24 of Subtitle C and thus has no bearing on what is, or is not, "income" for purposes of Chapter 1 of Subtitle A. Guess what Shyster, Only government employees are paid "wages" as defined in section 3401. From the top of this post is this question: "So, why does your "answer" only concern itself with such withholding? " The answer is because: Citizens, not working for the government, are NOT required to have anything deducted and withheld from their payroll. If Citizens are NOT required to have payroll deductions, then there is serious question to be answered in regard to Citizen payroll being taxable in the first place. This leads back to the questions about section 61 you refuse to address, after going through my reply to your next attempt of attack (shown on the next page) where 16th Amendment "INCOME" is examined, exposed, on presented to the Citizen. |