5 reasons you really do have to pay the IRS

Opponents have been arguing that the income tax is illegal since the 16th Amendment was passed in 1913. But think twice before shredding your Form 1040 and refusing to pay.

When you pull your pen out a couple months from now to pay your federal income taxes, stop and consider this question: Just who says you have to pay income taxes?

You’re by no means the first one to offer up that query, as the issue has spawned a fair amount of debate in recent years. If you don’t think so, check out any of the hundreds of Web sites that question the legality of income tax. Just last year the House of Representatives approved a resolution to outlaw the income tax, but the measure died when the Senate refused to consider it.

But, since you asked, here are five good reasons paying your federal income taxes is pretty much a must:

Reason 1: Congress said so.

At the heart of the brouhaha is the 16th Amendment to the Constitution, adopted in 1913, which established a federal income tax. Its full text is: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census of enumeration.”

Pretty straightforward, right?

Hold on, charge income tax foes. One of their central arguments is that the 16th Amendment was never properly and legally approved. For one thing, three-quarters of the 48 states then in the union had to approve the amendment approving the income tax concept. Opponents allege that a number of states, in fact, did not support a federal income tax or, at the very least, did not approve the same proposal.

“Oklahoma changed the wording of the amendment,” says Larry Becraft, a Huntsville, Ala., lawyer and a leading opponent of the federal income tax system. “Legislative bodies had to agree on the same bill, and many did not. Those sorts of word changes are very substantive.”

Becraft also argues that other state decisions were either misconstrued or misreported. For instance, Kentucky is listed as one of the states that ratified the 16th Amendment. “The 16th Amendment was actually rejected by Kentucky in 1910,” Becraft contends.

We should note that Congress approved the 16th amendment in 1909, the same year it established a corporate income tax. Ratification took another four years. It wasn't the first time an income tax was approved. An income tax was imposed on the North during the Civil War. Another was declared unconstitutional in 1895 and led directly to the 16th amendment.

Reason 2: Enough states approved the amendment.

Other legal authorities have no doubt that the federal income tax amendment was ratified by a sufficient number of states and in the proper manner -- including Kentucky, notwithstanding Becraft’s concern. A spokesperson for the commonwealth reports that Kentucky approved the amendment, but subsequently reversed that decision when someone pointed out that the wording had been altered. However, a second -- properly worded -- amendment ultimately met with legislators’ approval.

Erik M. Jensen, a law professor at Case Western Reserve University in Cleveland, allows that there may have been some punctuation changes in the proposal that came before certain state legislatures. However, given that law required three-quarters of all states to approve the measure that was ratified by Congress, that would mean that more than 12 states would have to have approved substantially different proposals to invalidate the process. But 42 of 48 states approved the measure between 1909 and 1913. Only Rhode Island, Connecticut and Utah rejected the amendment outright. Florida, Pennsylvania and Virginia didn't act on it.

“Even if there are arguable differences in some states, that still leaves plenty to make up the necessary three-fourths of the states,” Jensen says.

Reason 3: Even though the Internal Revenue Code doesn’t explicitly say so, the IRS has the authority to collect an income tax.

Another point raised by income tax opponents is that nowhere does a law exist that specifically empowers the federal government to collect an income tax. That, Becraft says, should be consistent with other laws that plainly dictate what is legal and what is not.

“All laws have to be clear,” says Becraft, “and that includes the constitutional foundation for the income tax.”

Not so, counter those who believe the income tax to be on solid legal ground. While they grant that there is no single clause in the Internal Revenue Service code that specifies an income tax, they argue that the code taken as a whole makes it implicit that the federal government can collect an income tax.

“There’s no one statute that identified an income tax, but the IRS’ code is really a collection of statutes,” says University of Delaware law professor Sheldon D. Pollack. “All 900 sections of the code are designed to work together.” (Pollack’s last name, ironically enough, is the same as that of the 1895 Supreme Court case that found a federal income tax unconstitutional. The decision led to the 16th Amendment because it said not all income taxes are unconstitutional.)

Reason 4: The federal income tax does not run counter to the Constitution.

Yet another argument anti-income tax forces make is that the income tax violates the Constitution by the fact that it’s neither a uniform nor an apportioned tax (A quick legal lesson: uniform, as the name implies, means that the tax is applied the same throughout the country. Apportioned tax refers to clauses in the Constitution that required taxes to be apportioned among the states based on population -- the more people, the greater the tax burden.)

Nonsense, reply legal authorities who support the income tax’s legitimacy. First, they say, the tax is uniform -- as Jensen notes, a taxpayer in Florida and another in Ohio who make the same amount of money pay the same federal tax rate. And, adds Jensen, the amendment itself makes the apportionment argument moot.

“The 16th Amendment itself says that you don’t have to apportion a tax based on income,” he says.

Reason 5: Why risk fines and/or jail time?

Legal authorities who say federal income tax is perfectly legal note that courts have consistently ruled against citizens who refuse to pay their just due. Fines -- and occasional time in the slammer -- have been meted out as a result of such cases.

For his part, Becraft is careful enough not to urge anyone with doubts about the validity of the income tax to drop his 1040 form into the shredder, consequences be damned. But that doesn’t mean income tax opponents should shut up while they pony up.

“You should remember that you have the right to let the government know about your grievances,” he says.

To put it mildly, there’s not the same level of proactivity on the other side of the federal income tax issue. For them, it seems clear that Secretary of State Philander Knox was acting appropriately in 1913 when he declared that the requisite number of states had approved the 16th Amendment, making a nationwide income tax a done deal.

“It’s curious to me why this keeps coming up. After all, an awful lot of time has passed since 1913,” says Jensen. “To me, to be honest, a more genuine debate would be how to pronounce Philander Knox’s first name.”