Kent Hovind's Reliance On Tax Pro Letters Was Not Reasonable

As Kent Hovind, a leading light of Young Earth Creationism, nears the end of a long prison sentence for tax related crimes, he finds himself facing a new charge related to the filing of a lis pendens on property that the Government had seized.  Kent has been giving telephone interviews from the Santa Rosa County jail in Pensacola where he is awaiting a trial currently scheduled March 2.

Hovindication

His supporters are calling for Hovindication.  They don't want just the current prosecution to be dismissed on the theory that Hovind has done enough time, a view that I am quite sympathetic with. The Hovindicators, as I have dubbed them, maintain Kent's previous conviction should be reversed.

Three of the fundamental tenets of Hovindication are that Kent Hovind has not broken any laws, that he has paid all the taxes that he owes and that he is not a tax protester.  The main evidence cited for these propositions are Hovind's statements to that effect.

Letters From Three Tax Pros 

Kent has also made much of three letters that he solicited one each from a CPA, an attorney and an enrolled agent.  When I interviewed Kent, he did not know what had happened to the letters or whether they were still extant.  He also could not recall who the three tax pros were what with the passage of time and all.

Well, the letters must have been loose on the internet at some point, because somehow or other copies were preserved by what the Hovinidcators refer to as the "enemy camp".  Robert Baty forwarded them to me and I made them available here.  But that's not all.  I sent them to Ernie Land and Rudy Davis.  Rudy printed them and mailed them to Kent.  And Kent has confirmed their authenticity.

#FreeKent, the Hovinidcators flagship website is exuberant about the letters provided by their greatest adversary headlining its post PROOF Letters Absolving Kent Hovind | IRS Illegally Imprisonment (I think they should have used an adjective rather than an adverb there, but I should not be critical given the number of typos I make.  Just want you to know I am paying attention)

We have proof letters by professionals in finance and taxes show that Kent Hovind did nothing wrong. These letters further show that Kent Hovind has been illegally persecuted and imprisoned in America, by the IRS. It is no coincidence the IRS has to come out a few days ago to apologize for abusing IRS structuring laws – admitting the law was created to catch drug dealers. It’s time for Christians across America to rise up and demand freedom for Kent Hovind.

I think the letters illustrate better than anything the difference in world view between Kent Hovind and, well, most people, but particularly people that I would call conventionally tax compliant.  Hovindicators tend to gloss over this difference in world view, but you don't have to scratch the surface much before it becomes apparent as when Kent refers to the IRS as a Puerto Rican collection company.

What Do Those Letters Prove?

This is going to be a longish discussion of what goes into the making of those letters and their significance.  It amounts to there being two radically different world views.

To the Hovindicators it is pretty simple.  The letters prove that Kent was telling the truth.  I have to wonder how many Hovindicators will actually read them and how many of those that do will understand much of them and how many of those will do any independent research confirming them.  I think that they will mostly be satisfied that Kent said that the letters vindicate him and that the letters are available.

 In the world view of the conventionally tax compliant those letters prove that Kent Hovind actually was a tax protester as the term was used in the nineties and around the turn of the millennium.  Congress forbade the IRS from designating people "illegal tax protesters".  I think IRS insiders started referring to them as "constitutionally challenged".  There has not since been a label for what the movement should call itself proposed that I have found satisfactory.  So I am going to coin one - NCTC - not conventionally tax compliant.

Before I get into that, I would like to put forth a common sense argument as to why it was not reasonable for Kent to rely on those letters for as long as he did.

The Commonsense Argument

I'm going to put this a little crudely, because Kent's reliance on the letters aggravates me quite a bit.  Here goes.

Kent you got those letters from a lawyer, a tax consultant (not a CPA, but let's not quibble) and an enrolled agent in 1996.  Nearly a decade later the IRS is up your ass much of it about stuff that is not even addressed in the letters.  There are something like 1.2 million attorneys, 600,000 CPAs and 50,000 enrolled agents in the United States.  Did it not ever cross your mind that you might not have taken the sharpest knives out of the drawer?  I just googled Pensacola CPAs and five firms popped up.  Would it have killed you to take your letters and some of the notices that you had gotten from the IRS and sit down and talk with a couple of working CPAs in your community?

OK. I've got that out of my system.  I will now explain to you in some detail why the letters show that Kent was a tax protester as the term was understood when the letters were sent. We'll start with a definition.

Conventionally Tax Compliant

A conventionally tax compliant American believes that if he or she has income, as ordinary people understand the word, exceeding a pretty low threshold, an individual income tax return is required.  Someone who is CTC can tell whether they need to file a tax return by going to the instructions and looking at the "Who should file?" section, which is usually right at the beginning of the instructions.

Of course instructions to forms are not actually law. They are not even authority.  Nonetheless, the people who put those forms together tend to do a really good job and if you are CTC you can pretty much rely on them.  There might be a bit of a pro-government bias here and there but that will generally be about very subtle issues.

One downside to a reliance on secondary sources by tax professionals is that a tax skeptic of some sort who asks the typical tax pro what the law is that requires a tax return will probably get a blank look.  It is not because the law is not there.  I have a relatively easy mnemonic you can use the next time a tax skeptic or patriot or tax truther or whatever they call themselves ask you to "show him the law"/  26-1-61-6012.  Title 26 of the United States Code.  Section 1 imposes an income tax on individuals.  Section 61 defines income very, very broadly including, by way of example, "compensation for services" and Section 6012 requires the filing of a return if your income is over very modest thresholds.

Kent Hovind and others will note that the Internal Revenue Code is big and complicated and nobody knows the whole thing, but frankly that part is real simple.  And you don't have to know the whole thing because there is nobody who has to worry about every part of it, unless you are running one of those fucking hedge funds whose K-1s make our lives so miserable as we prepare returns for high net worth individuals in the fall.  You probably don't maintain inventories, or run a bank or an insurance company or a mutual fund.  I could go on and on.  If you are a regular person with a job, there is very little in that complicated code that is relevant to you.

Here is what happens with people who think like Kent Hovind, though.  When I explained that to Sam and Dan who run God's Property Radio, I heard from one of them (frankly I can't tell them apart) that he is not an individual and started going on about Blackstone's fifth edition or something like that.  Here is the thing.  The favorite dictionary of the United States Tax Court is Webster's II New Riverside University Dictionary (1984).  The definition of individual as a noun is "A human being regarded separately from a group or from society",

Anyway the proposition that regular Americans who have more than insignificant earnings have an obligation to file individual income tax returns is not all that complicated and does have the force of clear laws behind it.  Frankly all the shit you find on irs.gov is well supported.  They are not making shit up.  Really.  That does not mean that they are always right.  Taxpayers do win in court fairly frequently.  The government wins more often, but that's because the government abandons losing cases.  Individuals can be and are more stubborn.

There is a small but significant portion of the population that does not accept this view.  We're not talking about people who disobey the law because they would rather keep the money for themselves and think they will probably get away with it.  Nor are we talking about people who engage in civil disobedience and refuse to pay on moral principles following in the footsteps of Henry David Thoreau.

No we are talking about people who believe that the law does not actually require most ordinary Americans to file Form 1040 and pay income taxes/  It was people like that that wrote the letters to Kent.  I have a pretty good notion of how Kent found them, but, as I said, this is a long post, so there will be some more background.  I have to tell you about Mr. Cheek.

The Cheek Defense

Title 26 imposes a duty to file individual income tax returns.  If you don't file, you can be hit with penalties.  If you don't pay, the IRS can ultimately come take your stuff or tell other people who owe you money to pay them instead of you - or else.  There is more though.  Title 26 has criminal provisions.  They are covered in Chapter 75.

By the way, this is an example of a portion of the Internal Revenue Code that is complicated, but that regular people who are sensible don't need to know jackshit about.  Section 7203 concerns failure to file a return.  Here's the thing.  There is a general principle of law that ignorance of the law is not an excuse.  That principle is relaxed for some of the criminal provisions under Title 26, because people know that the income tax is complicated so you should not be prosecuted for innocent mistakes.  Some of the crimes under Title 26 include the element of willfulness.

John Cheek was a pilot for American Airlines.  Beginning in 1980 he stopped filing income tax returns and claimed withholding allowances (He got up to 60) that pretty well eliminated his withholding. He was prosecuted for both evasion (Section 7201) and not filing (Section 7203)

At his trial Cheek had argued that he was sincere.

Cheek represented himself at trial and testified in his defense. He admitted that he had not filed personal income tax returns during the years in question. He testified that as early as 1978, he had begun attending seminars sponsored by, and following the advice of, a group that believes, among other things, that the federal tax system is unconstitutional. Some of the speakers at these meetings were lawyers who purported to give professional opinions about the invalidity of the federal income tax laws. Cheek produced a letter from an attorney stating that the Sixteenth Amendment did not authorize a tax on wages and salaries but only on gain or profit. Petitioner's defense was that, based on the indoctrination he received from this group and from his own study, he sincerely believed that the tax laws were being unconstitutionally enforced and that his actions during the 1980-1986 period were lawful. He therefore argued that he had acted without the willfulness required for conviction of the various offenses with which he was charged.

The jury had trouble reaching a verdict and asked for guidance.

When the jury resumed its deliberations, the District Judge gave the jury an additional instruction. This instruction stated in part that "[a]n honest but unreasonable belief is not a defense and does not negate willfulness,"  and that "[a]dvice or research resulting in the conclusion that wages of a privately employed person are not income or that the tax laws are unconstitutional is not objectively reasonable and cannot serve as the basis for a good faith misunderstanding of the law defense." Ibid. The court also instructed the jury that "[p]ersistent refusal to acknowledge the law does not constitute a good faith misunderstanding of the law."  Approximately two hours later, the jury returned a verdict finding petitioner guilty on all counts.

Cheek appealed his conviction to the Supreme Court.  The Supremes reversed his conviction.

We thus disagree with the Court of Appeals' requirement that a claimed good-faith belief must be objectively reasonable if it is to be considered as possibly negating the Government's evidence purporting to show a defendant's awareness of the legal duty at issue. Knowledge and belief are characteristically questions for the factfinder, in this case the jury. Characterizing a particular belief as not objectively reasonable transforms the inquiry into a legal one and would prevent the jury from considering it. It would of course be proper to exclude evidence having no relevance or probative value with respect to willfulness; but it is not contrary to common sense, let alone impossible, for a defendant to be ignorant of his duty based on an irrational belief that he has no duty, and forbidding the jury to consider evidence that might negate willfulness would raise a serious question under the Sixth Amendment's jury trial provision.

Thus was born the "Cheek defense", which the tax protester community hailed as a major victory.

In a somewhat ironic turn the Cheek defense did not end up helping Mr. Cheek.

 the case was remanded for a re-trial. In the re-trial, the jury rejected Mr. Cheek's argument that he actually "believed" that wages were not taxable. He was again convicted. On March 13, 1992, Cheek was sentenced to one year and one day imprisonment, and he was placed on five years probation. The conditions of probation were that he would cooperate with the Internal Revenue Service and pay his back taxes, and pay a fine of $62,000. The second conviction was upheld by the United States Court of Appeals for the Seventh Circuit, and the United States Supreme Court let that decision stand by denying review.[25] John L. Cheek was released from prison in December 1992

American Airlines refused to reinstate him after his sentence and he apparently lost his lawsuit against the airline. 

Nonetheless, the decision was embraced by tax protesters or the NCTC, as I call them, who's court victories are few and far between.  Somebody came up with an organized approach to preparing a Cheek defense, which I believe accounts for Kent's three letters.

The Reliance Defense

Although over 20 years old, The Reliance Defense - A Legal Method For Declining To File Income Tax Returns; and Avoidance Of The Paying Of Income Taxes can still be found on the web.  The Reliance Defense was inspired by the Cheek decision.

The basic idea of the RDM is that you acquire a set of legal opinion letters from licensed, bar-member attorneys, licensed PAs and CPAs, and other professionals who hold that there is no law requiring you to file an income tax return and/or pay income taxes. Such letters are written on their letterheads, showing their legal and professional credentials, and personally addressed to you. Each legal or professional opinion affirms that you are not required to file an income tax return (1040) and/or are not liable for payment of income taxes.

In the unlikely event that you are charged with "Willful Failure To File," and subpoenaed to appear in court, your attorney will have the evidence to prove that you had no "willful intent" to violate the law. It is your honest understanding that there is no law requiring you to file, and the proof is in your collection of letters of opinion from licensed professionals. The more legal opinions you have, the easier it will be for your attorney to convince a judge or jury that you had no intent to break the law. You relied prudently and judiciously upon the expert advice of recognized professionals.

There are some difficulties in setting this up.

The challenge for the RDM practitioner is to find additional attorneys and CPAs who are sufficiently informed and in agreement with the premise of the RDM to write such opinion letters. There are a growing number of such professionals, and more can be found through your own efforts. I have listed a few for your convenience later in this report.

Be aware that if you call an ordinary attorney and ask his or her advice about the reliance defense, you will probably be advised not to use it. That's because most attorneys make their money cooperating with the system and risk getting disbarred if they don't. Did you know that in order to meet Bar exam requirements, attorneys have to profess loyalty to the government and the courts, not to the client?

Most attorneys aren't knowledgeable in the matter of requirements to file tax returns and, conversely, believe, as most Americans do, that they must file because they have not done the research. Also, they generally take the position of protecting their immediate interest and won't oppose the government and forsake their loyalty pledge. I suggest that if any attorney or CPA you contact denies the validity of the information in this report, you challenge them by showing them the legal opinions you have acquired. Challenge them to find the law that requires you to do so. They won't be able to find such a law

Of course now that my convenient 26-1-61-6102 mnemonic is available, they might find easier.

"If the defendant had a subjective good faith belief, no matter how unreasonable, that he was not required to file a tax return, the government cannot establish that the defendant acted willfully." - Cheek v. U.S., 111 S.C. 604 (1991)

With your legal opinion letters you have more than a subjective good-faith belief. You've relied on the professional advice of licensed counselors who have provided a solid good faith defense.  Anyway, moving along.

The first step in the RDM is to contact attorneys, PAs and CPAs to obtain their legal opinion on whether the law requires you to file. When you find professionals who hold that there is no law requiring you to file, you can then request their professional opinion and advice in writing. You may, of course, use the list of professionals listed at the end of this report, but you are encouraged to find others who can be added to our list. We offer a reward of $100 for each such professional you find. 

Most professionals, including those on our list, charge $50 for their legal opinion letter, a very reasonable fee for the value received. Send payment along with your letter requesting their legal opinion. The legal opinion letters you receive will be on the advisor's letterhead and personally addressed to you.

 As it happens the RDM promoter listed six people you could write to to get these marvelous opinions.  Two of the people Hovind used Fred Ortiz and Guy Curtis were on the RDM list.  With respect to Ortiz, it was noted:

Fred Ortiz, another professional on our list, is not an attorney or a CPA, but like Conklin, his letters are strong and his reputation is established in the courts and the legal community. Having his letter will enhance and add strength to your attorney and CPA letters.

Hovind's third letter was from enrolled agent John J Schlabach.  So as it turns out Hovind never did get a letter from a CPA, which makes me feel good anyway.

Some Problems With The Letters

The letters do not really support Hovind's story that he contacted three tax professionals explained what he was doing and asked their opinion and they said everything he was doing was OK.  The only issue addressed in the letters is the voluntary nature of filing Form 1040.  There is nothing about the CES staff being independent contractors or structuring, which is what he was convicted of.  It may be that he got his money's worth from the letters as he was not indicted for failure to file or evasion.  Of course, the reliance method does nothing for civil liability.

More to the point, Hovind was not really inquiring.  He sought out people who were going to give him the predetermined answer that he wanted.  It was probably not all that reasonable to rely on those letters in 1996, but their value was utterly shredded in 1999.  Ronald McDougle in TCM 1999-264 tried to use similar letters to get out of penalties.  Two of McDougle's letters were from Ortiz and Curtis.

The main theme of the letters, and petitioner's argument, is that he is not required to file a Federal income tax return because it is a voluntary practice. Paying taxes is not voluntary. See Wilcox v. Commissioner, 848 F.2d 1007, 1008 [61 AFTR 2d 88-1299] (9th Cir. 1988), affg. T.C. Memo. 1987-225 [¶87,225 PH Memo TC]; Carter v. Commissioner, 784 F.2d 1006, 1009 [57 AFTR 2d 86-1009] (9th Cir. 1986); Malone v. Commissioner, T.C. Memo. 1998- 372 [1998 RIA TC Memo ¶98,372]; Liddane v. Commissioner, T.C. Memo. 1998- 259 [1998 RIA TC Memo ¶98,259]; Stonerock v. Commissioner, T.C. Memo. 1986-264 [¶86,264 PH Memo TC]; see also United States v. Bressler, 772 F.2d 287, 292 [56 AFTR 2d 85-5884] (7th Cir. 1985); May v. Commissioner, 752 F.2d 1301, 1304 & n.3 [55 AFTR 2d 85-747] (8th Cir. 1985); United States v. Wilber,  696 F.2d 79, 80 [51 AFTR 2d 83-619] (8th Cir. 1982).

The letters also contain additional hackneyed arguments that have been universally rejected by this and other courts. See Wilcox v. Commissioner, supra; see also Fujita v. Commissioner, T.C. Memo. 19 164 [1999 RIA TC Memo ¶99,164]. We shall not painstakingly address petitioner's assertions “with somber reasoning and copious citation of precedent; to do so might suggest that these arguments have some colorable merit.” See Crain v. Commissioner, 737 F.2d 1417 [54 AFTR 2d 84- 5698] (5th Cir. 1984). No useful purpose would be served by any further explanation. Suffice to say, petitioner is subject to Federal income tax during the relevant years, and we sustain respondent's deficiency determinations.

While reliance on advice as to whether a return must be filed may constitute reasonable cause, the person giving that advice must be competent to render that advice and the reliance on that advice must be reasonable.  

I'm not going to get into the subsequent problems of Kent Hovind's three stooges.  Oddly enough, any IRS problems that they might have had are actually proof that they were right in Kent Hovind's view.

The Alternative Tax Universe

The leading spirit behind the notion that the income tax is an elaborate hoax being perpetrated on the American by the IRS, which is not actually an agency of the United States government, is probably Irwin Schiff, who like Kent Hovind, is in federal prison.  The best summary I have ever seen of the problems with Schiff's arguments (which are replicated wittingly and unwittingly by the rest of NCTC community)  was stated by Schiff's own attorneys as they were trying to put on something of a Cheek defense for him

even though these cases, properly understood, do not support Mr. Schiff’s professed beliefs, they do contain language which, if honestly misconstrued and read out of context, could lead someone without legal training to believe that taxable income is limited to corporate profits

I began studying the NCTC community nearly 20 years ago when a former friend got caught up in it, creating a lot of havoc for his family.  I concluded that the material they put together was so good that the people who put it together had to know that it did not really work.  Their cites always always checked out, but were always misconstrued, whether honestly or not, and generally out of context.

Others have made a more thorough study of the movement.  Daniel Evans has put together and updated The Tax Protester FAQ cataloging many of the arguments and explaining why they don't work.  I was thinking of playing a drinking game called Frivolous Argument Bingo is which we match up arguments in the Curtis, Ortiz, Schlabach corpus to Dan's FAQ. Here is how far I got

Curtis Page 2 - 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 - 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.

Well, the post is already too long so I'll think about continuing this later.  Maybe we can get it going in the comments section.

Just a bit more reading that you might do before joining the ranks of the NCTC is the Tax Court decision in the case of Steven Waltner.  Generally the courts have lost patience with NCTC arguments (Remember this has been go on for a long time.  Cheek learned the theories in the late seventies,)  In Waltner the Tax Court went to the trouble of addressing many of the arguments as they had been putting out in a book titled Cracking The Code.


Does This Mean Kent Hovind Is A Bad Guy?

I don't think so.  Annoying as I sometimes find him, Kent Hovind apparently has enough of the mensch about him to inspire devotion from pretty sincere people.  I'd really like to see the current charges against him go away if it can be done in a manner that does not encourage even more tax mishegas.  I think Kent's views on prison reform should be widely shared and taken seriously, although I am not going to get behind a proposal to revive flogging and increase the number of executions.

I believe that Kent Hovind and Ernie Land are sincere.  To accept their views on taxation requires the acceptance of mind boggling conspiracies.  And of course they do believe in them.

I wrote this more for the benefit of those who might sympathize with Kent Hovind so that they might recognize that they can do so without buying the whole Hovindication narrative.  The government is not persecuting Hovind for his religious beliefs.  His tax troubles are entirely of his own making and the people prosecuting him, whatever their flaws might be are doing their jobs. The jobs that we the conventionally tax compliant have hired them to do, because if there is no enforcement of the tax laws against those who defy them, compliant taxpayers end up feeling like suckers.