What Is Up With Kent Hovind?
I have been following the travails of Kent Hovind for over two years, Kent Hovind is one of the leading lights in Young Earth Creationism, the notion that there is scientific, not just scriptural evidence that the physical universe is roughly 6,000 years old. Kent is nearing the end of a long prison sentence on tax related charges and is facing new criminal charges (trial scheduled March 2) related to the filing of a lis pendens. He also faces large civil liability for unpaid income taxes.
In response to his upcoming trial Kent has been giving interviews. For the most part, they have been to people who uncritically accept his version of events. He has asked them to make noise and shine light to create public pressure not only to have the current charges dropped, but also to have his previous convictions overturned, all seized property returned and a Congressional investigation into the various abuses that have taken place in his case. One of his supporters calls that desired result Hovindication. I have taken to calling Kent's supporters Hovindicators. They are running a pretty effective social media campaign, which you can read about here.
Peter J Reilly CPA ???SJ???
In a small way, I have become part of the story. Hovindicators,express outrage about the coverage that they receive form Robert Baty on Kent Hovind and Jo Hovind v USA - IRS and Dee Holmes on Hovindology, but they are not quite sure what to make of the coverage that they have been getting from me on forbes.com. I have been somewhat ambivalent about Kent Hovind. I think he has done more time than many, but not all, who have been convicted of similar crimes and have some sense that the government may be piling on with its latest prosecution. When I see what might have gone on with someone who bought some of the property seized from his ministry , I'm leaning a little more to the government side, although I could probably attribute most of what went on there to Kent's co-defendant Paul John Hansen, who was the trustee of Creation Science Evangelism.
The most vocal Hovindicator is Rudy Davis of LoneStar1776. Kent seems to call Rudy at least daily and Rudy hosts a weekly conference call in which the Hovindicators, unlike Jesuits or Masons, lay out their plans. The Jesuit theme is kind of amusing. I gave Ernie Land a hard time about Rudy speaking ill of the Society of Jesus, which is responsible for eight years of my education. Somehow that got translated into my being a Jesuit. I think they still think I may be a Jesuit.
The Fundamentals Of Hovindication
At any rate three of the bedrock principles of Hovindication are that Kent Hovind is not a tax protester, he has paid all the taxes that he owes and that he has not broken any laws. In one of his more recent phone calls with Rudy, Kent challenged me by name, to show him that he has broken a law. Sorry I lost track of that link.
So that is what this post is about. I have some common ground with Kent Hovind on prison issues and I think that he is totally sincere and probably an all round mensch, but I think that the Hovindication narrative is harmful, dangerous and false. Kent Hovind's defiance of and disdain for the IRS may be religiously based from his point of view, but the government's prosecution of Kent has nothing to do with his religious views or effectiveness in teaching creation science. It really is about the taxes and not the dinosaurs.
The argument that Kent has not broken any laws and has paid all the taxes that he owes gets somewhat complicated as Kent will discuss his ministry being exempt under a section that is actually a special rule not an exemption section, the CSE staff being missionaries and the IRS being a Puerto Rican collection company. It is something like the Gish Gallop that his opponents accuse him of using in creation debates. What he focuses on most though is that he solicited letters from a CPA, an attorney and an enrolled agent. When I interviewed Kent he indicated that he didn't know where the letters were and could not remember the names of the professionals who sent them.
As it turned out the letters were preserved somewhere on the internet and forwarded to me by Bob Baty. I sent them to Rudy Davis who printed them out and sent them to Kent Hovind who authenticated them. Here is a link to them.
Hovindicators maintain that the letters prove that Kent is an innocent man who tried to follow the law. Anything more than cursory examination will not support that view.
What Kent Asked About?
The part of the Hovindication narrative that insists that Kent Hovind told tax professionals everything that was going on and they told him everything he was doing was OK is patently false. Kent asked only questions about the supposed entirely voluntary nature of paying income tax and filing Form 1040 (Nothing about ministry or vow of poverty). Clearly Kent was not asking an opened ended question. The answer that he was looking for is clear. Not only that it is likely as you can see from this link that he knew what the answer was going to be. The Reliance Defense people found a lawyer who would write the kind of letter Kent wanted and a tax consultant, not a CPA. That accounts for two out of three of Kent letters. All three of them show up in enough subsequent tax litigation to make a reasonable person question their reliability, but I will focus on the letters themselves
He also asked about the voluntary nature of Social Security, which is a little bizarre since as an ordained minister he could have elected out. Anyway we'll just stick with the income tax. A bit more background first.
The Correct Answer To Kent Hovind's Stupid Question
Most ordinary Americans think that they have to file Form 1040 every year if their income is more than insubstantial. Of course, most of them, even most of those who make their living preparing tax returns, cannot reel off the statutory basis for that requirement. Well here is a handy mnemonic. 26-1-61-6012. Title 26 of the United States Code is the Internal Revenue Code . My language as I discuss this might get a little harsh, as I get a little emotional about this part of the argument
Section 1 imposes a tax on the taxable income of individuals (with different rates depending on family status). If you go to Webster's II New Riverside University Dictionary, which appears to be the dictionary most favored by the Tax Court, you will see individual defined as a noun as "A human being regarded separately from a group or from society". So Section 1 imposes the income tax on human being, all of them, in the whole fucking world, which is ridiculous since that would violate a whole bunch of treaties. It's OK though. Section 2(d) has a special rule that indicates that in the case of a nonresident alien individual the tax will only be imposed in accordance with Sections 870 and Section 871 which pretty much limit it to what the nonresident alien extracts from the United States.
Section 61 defines gross income which is the starting point for determining taxable income. The definition is very broad. Pertinent to Kent' letter included by way of example is- "Compensation for services, including fees, commissions, fringe benefits, and similar items.
Section 6012 requires filing if gross income is over a specified threshold. which works out to be not all that high.
Chapter 75 backs this all up with a variety of criminal penalties.
Now of course, the income tax is very complicated as you make your way from gross income to taxable income, but that basic part - You have income. You have to file. - really is not all that complicated, which is why out of the nearly 2,000,000 attorneys, CPAs and enrolled agents in the United States, there are very few that will write you letters that say otherwise. The interesting question is how there can be any at all, which will divert us for a moment
Some Reasons Not To File
Although I believe that there is a clear legal duty to file and pay individual income taxes and that it is really the right thing to do, since it is how many government services, which are important, are financed, there are arguments for not filing that I find make sense even if I don't agree with them.
The first and most common is that you would rather keep the money for yourself and think you can get away with it. As the enforcement resources of the IRS dwindle, this argument becomes more and more sensible. The chance of criminal prosecution is remote. If the IRS catches up with you you can use the collection due process system to work out a payment plan that you find affordable. There is a decent chance that your old liability will be classified not currently collectible. After 10 years it will expire.
The second argument that comes to mind is that you are some sort of anarchist and believe that government has no moral authority.
The third is that you are engaging in principled civil disobedience/ The war tax resistance movement works on this principle. Practice varies, but some war tax resisters will compute their correct tax liability and give it to charity. There has been legislation introduced to allow war tax resisters to pay taxes restricted from military use, but that has not gotten very far.
Kent Hovind is not maintaining that his refusal to file is based on any of the above arguments. Rather it is based on a theories like those in the letters, which fairly or not are referred by many as "tax protester" theories. I should note that Kent Hovind indicates that, much as he admires them, he is not himself a tax protester, Regardless, when he gets into it, he is spouting "tax protester' theories.
Legal commentator Daniel B. Evans has defined tax protesters as people who "refuse to pay taxes or file tax returns out of a mistaken belief that the federal income tax is unconstitutional, invalid, voluntary, or otherwise does not apply to them under one of a number of bizarre arguments." Law Professor Allen D. Madison has described tax protesters as "those who refuse to pay income tax on the basis of some nonsensical legal argument that he or she does not owe tax.
Here is Kent having a conversation with John D'Arcy on some of those theories.
A famous Christian evangelist who shall remain anonymous travels all around the country to churches teaching about Creation Science publishes a newsletter. He has a series of excellent videos on Creationism and runs a famous ministry we can't name. We bought is excellent video series which is very enlightening. Below is the standard form letter that he sends out to any of the people in his church audience who ask him about his position on taxes, and 100% of it agrees with what we say in our Great IRS Hoax book. His letter is commended for the simple and clear way that he explains the income tax fraud.
I don't think it would be shocking to find out that the "famous creation evangelist" cited on this website is Kent Hovind, At any rate, the current Hovindication narrative is that Kent was relying on the three letters so that is what we are going to tackle. Like I said this is a longish post. In the next part, we will look at the letters that Kent received.
As noted above, the reasoning that supports why you are required to file is fairly simple. The various theories that say you don't are multifarious and somewhat complicated. Dan Evans has taken the trouble to catalog many of the arguments and why they fail in The Tax Protester FAQ. I asked Dan if he would be willing to correlate Kent's letters with his FAQ, but he turned me down.
Seriously? Guy Curtis, John Schlabach, and Fred Ortiz? Hovind is relying on them?
They are what I would call the "usual suspects" of what is sometimes called the "reliance defense." You send them some money, and they send you an opinion that you can supposedly rely on to avoid civil or criminal penalties. (See http://www.mind-trek.com/practicl/tl16g.htm)
Except it doesn't work. Hovind is in Florida, where there are lots of lawyers and accountants, and instead he solicits opinions from a lawyer in Nebraska, and bookkeepers in Hawaii and Washington. But the only reason he would solicit those opinions is that he KNEW that he was facing civil and criminal penalties for what he was doing. So, rather than protecting him, the opinions just prove that he was willfully violating the law.
I don't really have time to get into the whys of the wrongness of their opinions, sorry.So here are the arguments in Hovind's letters and commentary on why they don't work.
Curtis Page 2, Ortiz Page 8, Schlabach Page 5 - The income tax is voluntary
Evans- This is a corruption of statements made by the IRS, the courts, and Congress to encourage taxpayer compliance with the tax laws, without the need for legal action against taxpayers. The claims that “(1) Compliance with the internal revenue laws is voluntary or optional and not required by law, including arguments that: a. Filing a Federal tax or information return or paying tax is purely voluntary under the law,” or similar arguments described as frivolous in Rev. Rul. 2007-20, 2007-14 I.R.B. 863, has been identified by the IRS as a “frivolous position” that can result in a penalty of $5,000 when asserted in a tax return or included in certain collection-related submissions. Notice 2007-30, 2007-14 I.R.B. 883.
Curtis Page 2, Ortiz Pages 3 and 4, Schlabach Page 9 - Nothing in the Internal Revenue Code makes an ordinary citizen liable for the income tax
Evans -More semantic games from people desperate to evade taxes.
Tax protesters claim that, before anyone can be liable for a tax, there must be a statute that specifically says that the person is liable for the tax (and must use the word “liable”). However, that is not what the law requires.
In its various subsections, section 1 of the Internal Revenue Code says that
“There is hereby imposed on the taxable income of every [married individual, surviving spouse, head of a household, unmarried individual, or married individual filing a separate return] a tax determined in accordance with the following table.. ..”As explained in the regulations:
“Section 1 of the Code imposes an income tax on the income of every individual who is a citizen or resident of the United States ....”Treas. Reg. § 1.1-1(a)(1).
The word “impose” means “to establish or apply as compulsory; levy.” So how can a tax be “imposed” if no one is compelled to pay it? The answer is that it can’t. If a tax is imposed on a person’s income, then that person is liable for the tax as a matter of law.
Curtis Page 3 - Filing is voluntary
Evans - Section 6012 therefore provides a very clear and very mechanical rule that requires people to file returns if they have more than a certain amount of income. If the return shows that tax is due, then section 6151 directs the person filing the return to pay the tax. (This is explained above in more detail.)
And so the courts have held that individuals are required to file tax returns.
“As the cited cases, as well as many others, have made abundantly clear, the following arguments alluded to by the Lonsdales are completely lacking in legal merit and patently frivolous: ... (9) individuals are not required to file tax returns fully reporting their income....”Lonsdale v. United States, 919 F.2d 1440, 1448 (10th Cir. 1990).
“The statutes themselves require the payment of the tax and the filing of a return. 26 U.S.C. § 6012. ... [The] duty to pay those taxes is manifest on the face of the statutes, without any resort to IRS rules, forms or regulations.”United States v. Bowers, 920 F.2d 220, 222 (4th Cir. 1990).
“Upon review of May’s amended peition, we find no allegations of fact which could give rise to a valid claim; rather, the complaint merely contains conclusory assertions attacking the constitutionality of the Internal Revenue Code and its application to the taxpayer.[Footnote omitted.] Tax protest cases like this one raise no genuine controversy; the underlying legal issues have long been settled. See, e.g., Abrams, 82 T.C. at 406-07 (citing cases rejecting similar arguments). Because May’s petition raised no justiciable claims, the Tax Court properly dismissed the petition for failure to state a claim.”Curtis Page 3 - Wages Are Not Taxable Income
Evans: As unbelievable as it might sound, some tax protesters simply think that the income tax doesn’t apply to wages
Section 61(a) of the Internal Revenue Code says that “gross income” (which is the starting point for determining “taxable income”) means “all income from whatever source derived, including (but not limited to) the following items: (1) Compensation for services, including fees, commissions, fringe benefits, and similar items....”
Sometimes the claim is that “compensation for services” is not the same as “wages.” Sometimes the claim is that “wages” are not the same as “gain” or “profit.” (See the discussion below on the claim that wages represent an equal, nontaxable exchange of labor for money.) Sometimes the claim is something else. Regardless of the rationale, the result is always the same: Wages are income.
Consider these statements by the United States Supreme Court:
“[T]he earnings of the human brain and hand when unaided by capital ... are commonly dealt with as income in legislation.”
Stratton’s Independence, Ltd. v. Howbert, 231 U.S. 399, 415 (1913).
“There is no doubt that the statute could tax salaries to those who earned them....”
Lucas v. Earl, 281 U.S. 111, 114 (1930).
“[The tax code] is broad enough to include in taxable income any economic or financial benefit conferred on the employee as compensation, whatever the form or mode by which it is effected.”
C.I.R. v. Smith, 324 U.S. 177 (1945).
“Wages usually are income ....”
Central Illinois Public Serv. Co. v. United States, 435 U.S. 21, 25 (1978).
“[T]he premise that personal injury awards cannot involve gain is obviously false, since they often are intended in significant part to compensate for the loss of gain, e. g., lost wages. (Citation omitted.) Since the gain would have been income, surely at least that part of a personal injury award that replaces it must also be income.”
Lukhard v. Reed, 481 U.S. 368, 375 (1987), (plurality opinion of Justice Scalia, joined by Rehnquist, White, and Stevens, Blackmun concurring in the result; footnote omitted).
“The definition of gross income under the Internal Revenue Code sweeps broadly. Section 61(a), 26 U.S.C. 61(a), provides that ‘gross income means all income from whatever source derived,’ subject only to the exclusions specifically enumerated elsewhere in the Code. As this Court has recognized, Congress intended, through 61(a) and its statutory precursors, to exert ‘the full measure of its taxing power,’ [citation omitted] and to bring within the definition of income any ‘accessio[n] to wealth.’ [citation omitted] There is no dispute that the settlement awards in this case [for ‘back wages’ to compensate for sex discrimination] would constitute gross income within the reach of 61(a).”
United States v. Burke, 504 U.S. 229, 233 (1992).
IRS Not Complying With Privacy Act And Paperwork Reduction Act - Ortiz Page 6
At one time, the instructions to Form 1040 referred to section 6001 (the general requirement for a return for different kinds of taxes) but not section 6012 (which requires the filing of income tax returns by those with more than certain amounts of income). The instructions have been changed since then, and the “Disclosure, Privacy Act, and Paperwork Reduction Act Notice” now clearly refers to section 6012 as well as to sections 6001 and 6011.
But even when the instructions referred only to section 6001, courts had no difficulty in concluding that the liability for income tax, and the requirement to file a return, is imposed by the Internal Revenue Code and is not negated by the words used by the IRS on the tax forms. For example:
“[Billman] contends that, as a ‘private individual defined in the Privacy Act,’ he is not required to pay tax because the ‘IRS has admitted that the * * * [Internal Revenue Code] does not apply’ to such individuals. He notes that the Privacy Act requires the Internal Revenue Service to (5 U.S.C. sec. 552a(e)(3)): ‘inform each individual whom it asks to supply information * * * the authority * * * which authorizes the solicitation of the information.’ He then concludes that, because the Form 1040 ‘Privacy Act Notice’ fails to mention section 6012, I.R.C. 1954, he is not required to provide any tax related information and, indeed, is freed from paying any tax at all. In our judgment, petitioner’s position is based on sheer sophistry. We hold that the Form 1040 ‘Privacy Act Notice’ does satisfy the requirements of the Privacy Act, and that, in any event, even if there were a failure to comply with the Privacy Act, such failure would not nullify petitioner’s liability for Federal income taxes.”
Billman v. Commissioner, 83 T.C. 534 (1984), aff’d 847 F.2d 887 (D.C. Cir. 1988).
To Sum Up
Even though, they always lose in court, people like Kent Hovind continue to insist that they are the ones who are right about the law. Here is what Dan Evans has to say about that which is well worth considering.
I am often asked, “Why do you always assume that the courts are right and the tax protesters are wrong?” Or, “Couldn’t the courts be wrong about what the Constitution means?” Those questions demonstrate that the questioner doesn’t really understand what is meant by “law” or the “rule of law.”
Law is not some kind of abstraction that floats in the air, free from any connection to people or events. “The law” is what legislatures, courts, and governments do, and the real test of what the law “is” shows in how the law is applied in actual cases.
So when lawyers talk about what “the law” is, they are talking about how a judge will rule. Not how the judge should rule, or might rule, but will rule. As Justice Oliver Wendell Holmes once explained, “the only definition of law for a lawyer’s purposes is something which the Court will enforce.” Letter to Sir Frederick Pollock, 7/3/1874. Or, more famously: “The prophecies of what the courts will do in fact and nothing more pretentious are what I mean by the law.” The Paths of the Law (1897).
The process of law is also a process of consensus. We have a variety of procedures, some political, some judicial, and some bureaucratic, for determining what the law should be and how it should be applied. If we don’t like the results, we have ways of changing the results and, when there are conflicts, we have ways of resolving conflicts. However, when the courts, the legislatures, and the voters all agree on what the law is, then that is what the law is. The fact that some people believe that the law should be different that what courts have said it is doesn’t mean that the law is different from what the courts have said, but only that they should argue their positions within the political system and attempt to change the results.
In the case of the income tax, there is no conflict. The judicial, executive, and legislative branches of our government, and a majority of the voters, have all agreed for more than 90 years that (1) an income tax is constitutional, (2) it applies to wages, and (3) every citizen and resident of every state is required to file a tax return and pay the tax. That is what the law is. There is no question about it,
Has Kent Hovind Broken Any Laws?
So to sum it up, the people who I call conventionally tax compliant, which is most people for whom the whole topic is relevant, it is clear that Kent Hovind has broken the law. He managed to find a couple of professionals who said he was right but you would think that losing as many times in the courts would convince otherwise. He is still holding firm with them even though their letters don't address any of the issues which he is in trouble for.
Much as we might admire Hovind's tenacity, it is probably also the source of his harsher treatment. His supporters will note that he got a longer sentence than others convicted of tax related crime. Commonly, though, celebrities charge with tax crimes will blame bad advice, plead guilty and say they are sorry. Treatment is more lenient if you do that. We can point to at least one person, who is similar to Kent who got an even longer sentence. That would be Irwin Schiff, whom I discuss here.
Schiff may well have created some of the arguments that Kent's advisers rely on. Schiff of course devoted a much larger portion of his time to preaching his views on income tax, but Kent is clearly using the same playbook and being about as successful.
Hovindicators see Kent's prosecution as being religious persecution. Kent has relied on the same arguments as Irwin Schiff and has not been sentenced to as much time, yet. Schiff does not talk about religions much. As best I can tell he is a non-observant Jew