Low Profile Tax Resistance


"Taxation is theft."

That statement is one that libertarians have seen in print and heard many times. One significant intellectual landmark in the personal development of a libertarian comes when the validity of that proposition is accepted. The alleged inevitability of taxation (on a par with death) has been propagandized for so many centuries that most people seem unwilling to subject it to analysis by the same standards which they apply to other coercive action. At the risk of belaboring the obvious, taxation is properly characterized as theft because it involves the taking of a person's wealth by force or (as is usually the case) by the threat of force. One has only to observe the penalties imposed by government for nonpayment of taxes to realize that although most people pay their taxes without much fuss, the government will resort to force very quickly if the taxes are not paid. So much for the bureaucratic propaganda that ours is a "voluntary" tax system!

Resistance to taxation comes naturally to libertarians. Most people would like to avoid the heavy burden of taxation, but libertarians are better suited for it psychologically because they know that taxation is a violation of their individual rights. Hence, the prospect of resisting the taxing authorities is a very appealing one. It conjures up visions of the Boston Tea Party and participation in revolutionary historical processes. Unfortunately, head-on resistance to the tax laws and the taxing authorities involves tremendous risks, just as any civil disobedience involves tremendous risks. We owe a great debt of gratitude to radical tax resisters who seek to draw attention to the unconstitutionality of tax laws and procedures employed by taxing authorities. I can agree that many tax laws do violate constitutional provisions, most notably due process, that the bureaucrats involved in enforcing the tax laws often perform in an unconstitutional manner, and that the Courts are notoriously blind and deaf when constitutional issues are raised in tax cases. However, those subjects are beyond the scope of the present article.


With regard to radical tax resistance (e.g., refusing to file, refusing to pay, filing returns which contain no information except refusals to answer on the ground of the 4th and 5th Amendments to the U.S. Constitution, etc.) some further comments are in order. The risks of criminal prosecution are very great and the Government is more often than not successful in prosecuting. However, this is only one aspect of a two-sided coin. The Internal Revenue Service is also involved in civil tax collection. Regardless of whether a tax resister is prosecuted for violation of some criminal statute, the IRS merely goes on its way collecting the tax. If the taxpayer does not file a return, the IRS is empowered to make its own assessment of the tax owed and to employ a number of procedures for collection. [Internal Revenue Code § § 6020, 6021. Internal Revenue references will hereinafter be designated "I.R.C."] News stories about successful tax resistance usually are stories about successful defense of criminal prosecution. The fact that a person successfully defends himself and stays out of jail does not tell the other half of the story, which usually is that the Defendant has been stripped of assets by the IRS and ironically, the Government wound up with more from the resisting taxpayer than if he had filed a standard return.

Another aspect of this picture is that some "professional" radical tax resisters make a business out of selling tax resistance packages and counseling others to follow certain procedures which are represented to be successful. In my discussions with the people who are interested in tax resistance, I find many of them have been persuaded to follow procedures endorsed by certain professional tax resisters, which procedures, if followed, would possibly provide a defense to criminal prosecution, but do nothing to prevent civil tax collection by the IRS. Often this second aspect has never been disclosed. This comes very close to fraud, in my view.

Even the more knowledgable professionals do not always succeed. For instance, Marvin Cooley, noted author of The Big Bluff, was recently convicted for willful failure to file income tax returns, even though he based his defense on constitutional issues. His conviction has been upheld on appeal.

All of this had led me to recognize that there is a demand for a low profile approach to tax resistance. The goal is to minimize the tax bite as much as possible, and do it in such a way as to avoid IRS attention. Although committed to the concept that taxation is wholly unjustified, many persons are unwilling to undertake the risks involved in radical tax resistance. Most people are also ignorant of the procedures whereby the little guy can take advantage of those provisions of the Internal Revenue Code which the demagogues refer to as "loop-holes." This article will explore one method available to persons to minimize their taxes and defend themselves against the IRS inquisition if it should occur. It is not intended to be, nor could it possibly be, an exhaustive discussion of all possible approaches.

The thesis of this article is based on three factors: a libertarian value orientation, the Internal Revenue Code, and the Internal Revenue Audit and Appeal System.


Libertarians believe that each person is entitled to live his life in accordance with his own values. Unfortunately, the average person finds himself in a rut or a rat-race existence which is contradictory to the concept that he is the master of his own fate. To live according to one's own values, one must first know what they are. Thus, the first step is to take a long hard look at one's self. There are a number of factors to consider, i.e., age, sex, educational level, present career status, career goals, marital status, children, financial status, intellectual interests and capabilities, physical interests and capabilities, etc. One must use one's imagination to discover what aspects of life are enjoyable, stimulating and relatively available. Unfortunately, for too many people, what they do to earn their living is dull, and what they enjoy doing is relegated to evenings and weekends. Now is the time to change that.

There is a very simple fact that can be observed in the world. No matter what it is that you enjoy doing, some people are already making their living at it—either directly, or in some peripheral way. For instance, if you like to ski, others are already doing it professionally, or making ski films, or working at ski resorts, or manufacturing and selling ski equipment. For every area of endeavor which might turn you on, it is possible to work in it directly or in some field related closely enough for you to obtain the benefit that you are seeking. The operative principle is to make your work your life, or your life your work. If you are not having a good time at your work, the hell with it. Make some changes. Ironically, the tax laws can help—yes, help—you do this.


The Internal Revenue Code (I.R.C.) is a very bulky and complex document. It is the result of years of lobbying effort, log rolling, mutual backscratching and all of those other activities that endear politicians to us. Frankly, it is almost totally incomprehensible to any reasonable layman. Most lawyers who specialize in tax work will be the first to assert that the I.R.C. represents some of the worst legislation ever foisted upon the citizenry.

However, there are a couple of fundamental ideas which go a long way toward explaining why the I.R.C. is the way it is. Legislators, in adopting the I.R.C. and amending it voluminously over time, have been guided by two principles. The first is to raise revenue. Even legislators seem to understand that there is no free lunch when it comes to raising the money to pay their own salaries and do other bureaucratic things. The second principle is considerably more complicated. It is that the tax laws can effectuate social policy. That is, by taxing some things more heavily you can discourage certain types of activity and by taxing other things less heavily, you can encourage certain other activities. It is also possible to reallocate wealth from some people to other people and thereby persuade the recipients that it is a good idea to vote for you in the next election. The most obvious example is that the income tax is "graduated"—i.e., people who earn more pay a higher percentage of their incomes in taxes than those who earn less.

The existence of any particular provision of the I.R.C. is likely to be the result of lobbying pressure from some group that is the beneficiary of that provision. Such groups, of course, always are able to point to the great social good of such provisions. The oil industry can quite accurately state that the oil depletion allowance encourages exploration, and everybody knows it is a good thing to find more sources of oil. Charitable organizations can point to the charitable deduction and say that this is good because it encourages private charity from which all benefit. The construction industry can point to the deduction for depreciation on income producing property and state that this is an encouragement to residential construction, etc., ad nauseam.

One major social policy that the Internal Revenue Code is designed to effectuate is the encouragement of business. Although government generally, and the taxation system specifically, is deleterious to business, the I.R.C. is full of provisions (loop-holes?) that are advantageous only if one is in business or conducting some sort of activity for the production of income. Even our legislators know that wealth must be produced before it can be looted. Therefore, we see a great many advantages which the person in business for himself has over the one who works for wages. The inevitable and somewhat ironic, conclusion is that a good way to beat the taxation system is to do what you like to do as a business. This can be done as a single venture or as a "moonlighting" operation in addition to salaried employment, or as one of several independent lines of business, or any combination to which one's imagination might lead. Following are some examples of people who have followed the maxim: "Figure out what you would like to do and make a business out of it."


Some years ago, I had an acquaintance (let's call him "Dick") who held a rather mundane job and who spent all of his time off surfing and skiing. One fine day Dick liquidated all of his assets, bought some motion picture equipment and a station wagon and launched into film making with an emphasis on surfing and skiing. He worked fairly hard, lived on a level not too far above subsistence for some period of time, but gradually honed his skills and was able to market a product which has been enthusiastically received by the public for a good number of years now. So, Dick makes a good living, goes all over the world, surfs where and when he wants to, skis where and when he wants to and exhibits his films to thousands of people who would dearly love to do what Dick does. Under the I.R.C. all travel expenses (e.g., car, train, plane, hotels, food away from home, etc.) are deductible business expenses. [I.R.C. § 162.] Every piece of equipment purchased to carry on the business is a depreciating asset for which a deduction is available. [I.R.C. § 167.]

Another photographer-type (let's call him "Jim") is regularly employed as a photography teacher in a community college. With considerable time off, he likes to go various places and take photographs. So long as Jim structures his activities as income producing, he can take advantage of deductions for his expenses. For instance, if he sells some photographs, or uses them in his teaching, or participates in an exhibition for which he gets paid, he can then deduct his travel expenses in going to the places where he took the photographs, including travel, materials, lodging and food, and all expenses connected with preparing photos for exhibition or sale, etc. [I.R.C. § 162.] Jim is also involved in organizing a literary and educational nonprofit corporation which will have tax exempt status. [I.R.C. § 501(c)(3).] The purpose of the organization is to produce photographs of historically or socially significant places and events for use by historians, museums, college libraries, etc. By operating this tax exempt organization Jim can do the things that he wants to do, and obtain numerous tax advantages. He can make donations from his teaching salary to the corporation and this becomes tax deductible. He can also raise money for its operations from others who are willing to support its activities and who also are able to take a tax deduction for the donation. In Jim's house, of course, considerable space is set aside for his business related activities; he buys a great amount of photographic and related equipment and subscribes to a number of journals. All are tax deductible. [I.R.C. § § 162, 167.] Now, every bit of this he would do anyway, to the extent he is financially capable. By doing it in the way he has, he can do more of what he wants to do and reduce his tax bite to practically nothing, leaving the bureaucrats very little of his money to spend on foolishness.

I have another friend (let's call him "Ed") who is fairly heavily into gourmet cooking, fancy wines, etc. Ed has participated in gourmet clubs and likes to entertain. Doing it the ordinary way would mean that Ed would earn his salary, have the taxes taken out of it, and whatever was left over, he could spend on the things that he likes to do. By the simple expedient of making a business out of this endeavor, Ed can do considerably more of it because what he spends will be deductible. The key is to charge a small admission. Then, everything which contributes to making a gourmet presentation becomes a deductible expense. For instance, the cost of owning or renting the portion of the house, i.e., kitchen and dining room, even living room for wine tasting, etc., could go into the equation. [I.R.C. § 167.] All the cooking utensils, all the food and wine, the costs of cookbooks and periodicals, related travel experiences to get exotic foods, all would be deductible expenses. [I.R.C. § 167.] Consider the opportunity to attend a convention of famous French chefs in Paris and to deduct the costs of the trip!

Writers have a tremendous opportunity to take advantage of the I.R.C. If writing turns you on, reading and research probably do too. It is fairly obvious that a writer in order to gather material must go to interesting places. He has to have a place to work and that might be his home, or that might be several places, such as a cabin in the mountains or a little place at the seashore. Without belaboring the point, it is fairly evident that if a person writes and actually makes a good effort to get his material published (hopefully with some success) then there are not too many things that he could spend his money on that he could not also deduct as a business expense.


It is important that one not mislead himself in this area. In order to obtain a deduction, the money must be spent. If one spends money on stupid things, even though he might get a deduction, he still comes up short. Many people with fairly high incomes are always looking for "tax shelters" which quite often turn out to be rat holes down which their money has been thrown. They would have been better off keeping the money and paying high taxes on it because they still wind up with some portion of their money in their pocket. The secret is to spend the money on something that you want to spend it on anyway, but to have the expenditure labeled "tax deductible."

In order to succeed in this endeavor, one must actually be conducting a business or an activity for the production of income. Deductible expenses incurred in operating the business are subtracted from the taxpayer's gross income, resulting in a low "adjusted gross income." [I.R.C. § 62. ] Personal deductions (e.g., medical) are then deducted from the adjusted gross income to give taxable income. [I.R.C. § 63. ] The tax rate is applied to taxable income. The primary thrust of the "make your life your work" approach is to reduce adjusted gross income.

The most important operating rule is to keep records in the manner that businesses keep records. Where taxation is concerned the law places a burden of proof on the taxpayer to show that he is entitled to every deduction. [E.g., I.R.C. § 274, Tax Court Rule 32.] If one goes about enjoying himself in a business-like manner, takes in some income and keeps business-like records, he has a great likelihood of succeeding.

There are some other devices which the average person should consider for purposes of reducing his taxes. First, he should endeavor to be an independent contractor rather than a salaried employee. The result of the independent contractor label is that taxes are not withheld from your wages so that the money stays in your pocket all year long rather than being withheld by the employer and handed to the government who uses it without paying you interest. It also reduces the burden imposed on employers to keep the withholding records and pay over the money. The amount that one could demand for his services as an independent contractor should be somewhat higher than if the same person were an employee, simply because less is taken out by the uninvited third party.

If one finds himself as a salaried employee, it is possible to reduce the amount of withholding by prudent use of the W-4 form supplied by the employer. This is the form which every employee fills out for purposes of determining how much tax is to be withheld from his paycheck. Most think of the number of actual people to be counted in order to determine the number of "exemptions," e.g., the taxpayer, his or her spouse, and their three children, total five. However, additional "exemptions" are available by estimating that one's itemized deductions for the year will exceed certain dollar amounts. The higher the number of exemptions, the lower the rate of withholding. One must be careful in this area because several taxpayers have attempted to reduce the withholding by exaggerating the number of actual dependents, i.e., saying they had 10 children when they only had 3. This type of falsification results in jail sentences. The safe way is to make a high estimate of one's itemized deductions. So long as there is some reasonable basis for the estimate, there is no substantial risk of criminal prosecution.


The Internal Revenue Service may at some time decide to audit your return. When this occurs, there are certain procedures to follow in order to take advantage of the tax law. There are three basic concepts which guide your conduct at this point. First, the IRS is primarily interested in recovering tax dollars. Second, the tax collection bureaucracy operates with limited resources. Finally, the penalty for late payment of taxes due is a nine percent per annum charge. (It was only six percent until recently when new legislation, effective July 1, 1975, was passed.) This last item is of primary importance in today's world where unsecured loans can usually not be obtained for less than 12-14 percent and sometimes are in excess of 20 percent per annum.

The first contact from the IRS will ordinarily be a notice of audit. The individual taxpayer will ordinarily be requested to appear at the Internal Revenue Service office for the audit, and to bring his records. Ordinarily an audit will only cover one tax year. The I.R.C. requires that audits be completed and an assessment (statement of tax due) made within three years of the date that the return was filed. [I.R.C. § 6501.] Therefore, if the return for the year 1972 were filed on April 15, 1973, the IRS must make the assessment prior to April 15, 1976. As a practical matter, the IRS will not undertake an audit unless it has more than a year to complete it before the three year period expires.

The first question the taxpayer faces is whether to have his accountant or attorney begin representation immediately, or to handle the first stages of the audit himself. It is recommended that the taxpayer at least confer with his legal representative to answer this question. In some circumstances the legal issues involved and the amount of money in dispute are small enough so that the taxpayer can probably adequately handle the situation. In many instances, however, the legal issues are complex, and possibly sensitive, and the amount at issue is large enough to advise involving the taxpayer's professional representative at the outset. Ordinarily, it is safer if the taxpayer has no contact with the revenue agent. The reason is that the taxpayer may make admissions which he does not realize are damaging. Generally, the best situation is to make arrangements for the audit to take place either at the accountant's or attorney's office, and to have the records available to the auditor at that location. This way, the taxpayer is responding to the audit as required by law but, is giving the IRS no more information than is strictly required.

It is also possible in making arrangements for the audit to obtain extensions of time, putting the day of reckoning further and further in the future. Such extensions are usually easier to obtain when one is represented by a professional. Professionals are also usually more capable of opening negotiations for compromise and settlement. [I.R.C. § 7122 allows compromise of tax claims by the government.] Since the IRS is mainly interested in getting money and closing as many files as possible, IRS agents are nearly always willing to discuss a compromise settlement. Whether or not one is willing to compromise at an early stage, rather than a later one, is dependent upon a number of factors. For instance, if the auditors are focusing on some items which are relatively inconsequential to the taxpayer, but there are other items which he would prefer they didn't consider, the taxpayer might be motivated to pay quickly and have the audit completed and closed. On the other hand, if the agent is looking into everything of consequence anyway, the taxpayer might be wiser to carry the whole audit procedure out for as long as he can. This is a decision which must be made at the time, and about which no generalizations can be stated.

The primary tool in dealing with the IRS agent is the records which the taxpayer has kept. There is nothing so persuasive to an agent as thorough documentation of every expenditure and deduction that the taxpayer claims. If the audit is to cover 5 or 6 items and the taxpayer proves with his records that he is absolutely correct on the first 1 or 2, often the agent will not even look into the remaining items. At the risk of sounding repetitive, thorough record keeping which justifies the claim of every deduction is the best weapon of the taxpayer.


Once the audit is complete, the revenue agent will send the taxpayer a "Preliminary Notice" [Internal Revenue Form L-191 ] of the tax assessment. This is often referred to as a "30 day letter." The reason for this is that unless the taxpayer files "Protest" to the assessment within 30 days, the assessment will become "final" and the IRS collection agents will then proceed to levy on the assets of the taxpayer to satisfy the assessment. If he acts within 30 days, the taxpayer can request a conference for review of the assessment at the District Director level. Here again, it is possible to obtain extensions of time and to negotiate a compromise of the assessment.

Assume that the IRS holds fast and the District Director continues to assert that the taxpayer owes additional money. The taxpayer can then take the next step—further appeal within the IRS, which brings him to the "Appellate Division Conference" level. Again, at this level, it is possible to obtain extensions of time and to negotiate for a compromise. In the event that no agreement is reached between the taxpayer and the Appellate Conferee, the IRS will send the taxpayer a "Notice of Deficiency." [I.R.C. § § 6211, 6212.] This notice means the IRS has decided that the taxpayer must pay a certain amount of tax and that there are no further appeals within the IRS. The Notice of Deficiency is often called a "90 day letter" because it gives the taxpayer 90 days to take action.

The action the taxpayer can take is either to pay the tax within 90 days, or to file a Petition with the Tax Court challenging the IRS assessment. If the taxpayer does not take any action within the 90 days, then the assessment is final and the IRS collection agents will proceed to levy upon the taxpayer's assets to satisfy the deficiency. A great many tales of woe are heard by tax lawyers from taxpayers who have received Notices of Deficiency and have not taken any action to protect themselves within the 90 days. At this point, constitutional arguments based upon lack of due process simply will not hold any water. To give a taxpayer 90 days notice to take his case to the Tax Court is not a violation of due process under any reasonable interpretation of the Constitution. Once the tax is collected, however, the taxpayer can sue for refund in the U.S. District Court. [I.R.C. § 7422.]


The Tax Court is the only forum for the taxpayer to obtain a judicial determination of his tax liability without first paying the tax. Thus, the primary advantage of going to the Tax Court is that the taxpayer can keep the money in his pocket until the Tax Court renders a decision. The other avenue for judicial hearing of tax issues is in the United States District Court. Unfortunately for the taxpayer, in order to go to the United States District Court, the taxpayer must pay the tax assessed and then sue for refund. One significant difference between the two courts is that in the Tax Court there are no jury trials. One can obtain a jury trial in the United States District Court. This raises an interesting constitutional question. That is, does it really constitute due process to require the taxpayer to pay the disputed tax before he can get a jury trial, when the constitution grants the right to a jury trial to all persons in cases at law involving amounts in excess of $20? Unfortunately, consideration of that issue is too complex and space consuming for this article.

The Tax Court has extremely limited resources. This is fortunate for the taxpayer once he gets to this point. The Tax Court is a court of nationwide jurisdiction, which is manned by 16 judges. These judges ride circuit, that is, they do not sit in one place, but travel from city to city and hear a number of cases in each. The statistics for the Tax Court are quite illuminating. In the year 1974, approximately 8600 petitions were filed in the Tax Court by taxpayers. Of all the returns audited and all of the disputed tax assessments, only 8600 resulted in taxpayers filing petitions in the Tax Court. Of that 8600, probably less than 1000 will go through trial, if past experience is any guide. All of the remainder will presumably be compromised, either at 100 percent of the assessment or something less. The Tax Court judges are notoriously heavy-handed, pressuring both the Government and the taxpayers to settle cases. Here again, is a great opportunity for the taxpayer to compromise the matter for something less than the IRS assessment.

Although when the taxpayer has his case heard in the Tax Court he is able to keep the disputed tax money in his pocket until after judgment, there are other considerations which argue in favor of using the U.S. District Court. As noted above, in the U.S. District Court the tax must be paid first and then a suit for refund brought. Statistically, taxpayers do better in the District Court than in the Tax Court. This is particularly so when the case is heard before a jury in the District Court. Juries seem to identify with the taxpayer; whereas, the judges of the Tax Court are "experts" in tax law, which seems to mean that they identify more closely with the Government position.

In a U.S. District Court case, a taxpayer also has a broader arsenal of discovery tools which he can use. Most notable of these is the Freedom of Information Act. [5 U.S. Code § 552.] If one is thinking of harassing the Government in such a context it is possible to make the Government attorneys and the IRS agents jump through a number of hoops by use of the discovery tools under the Federal Rules of Civil Procedure and the Freedom of Information Act. Litigation in the Tax Court is much more limited insofar as use of these tools is concerned.

Assuming that the judgment goes in favor of the Government in the case in the Tax Court, this is not necessarily the end of the line for the taxpayer. The judgment can be appealed to the U.S. Circuit Court of Appeals and ultimately to the United States Supreme Court. [I.R.C. § 7482.] There ain't no such thing as a free lunch, however. Appeals are expensive. Their advisability depends upon the facts of the particular case, most importantly the amount at issue. But, it should be noted that in Tax Court cases filing a Notice of Appeal and posting a bond will prevent a collection of the tax until completion of the appeal. [I.R.C. § 7485.] Thus, once the appeal process begins, the taxpayer is again in a position to discuss compromise of the judgment by offering to pay something less in exchange for withdrawal of the appeal. This is a ploy which can be used until the time the U.S. Supreme Court has disposed of the case. In discussing compromise, one ground that the Government can use for accepting less than the judgment is that there is some question about the ability to collect the tax. [I.R.C. § 7122.] The taxpayer who has spent all of his money fighting the Government is then in a position to negotiate with the Government to take considerably less, simply because he has become a turnip. One would have to have considerable commitment to principle to put himself in that position.

So, eventually, the day may come when the taxpayer must pay up the Tax Court judgment. Alternatively, he may have decided to pay before the matter ever went to trial or he may have settled during trial. In any event, there will be some absolute dollar amount which has been termed due and payable by the taxpayer. Here a great irony arises. The Federal bureaucrats have bollixed up the monetary situation so badly with their inflationary policies that all the delay in the interim simply works to the advantage of the taxpayer. Assume that the taxpayer, as a result of his tax planning, saved himself $5,000 in taxes over what he would have paid if he had conducted himself like a traditional sheep. Now, assume that the IRS has been able to show that the taxpayer must pay back $1,000 in taxes. The penalty for late payment is nine percent per annum on the tax which remained unpaid during the period it has taken to go through the audit, appeal and litigation process. The taxpayer then pays the $1,000 plus nine percent interest. There is no place in today's market that a taxpayer could have borrowed that $1,000 at nine percent. The taxpayer, of course, has had to pay for professional representation during this entire process. Ironically, all of that expenditure is tax deductible as well! [I.R.C. § 212.]


The libertarian who is not willing to take the risks involved in total nonpayment of taxes has another, low profile, approach available. This involves first, making an assessment of his own values and interests and then, reorganizing his life so that he can conduct his affairs as a business, or income producing venture. An individual can, of course, be involved in more than one of these lines of business. The idea is to decide what you like to do, and make a business of it. Because the Internal Revenue Code provides tax deductions for expenditures in the conduct of business or for the production of income, a great opportunity is created to reduce one's taxable income to near the zero point. Considering that most reasonably intelligent individuals have an earning capacity in excess of $20,000 gross per year, which is in the 38 percent tax bracket, substantial savings of several thousands of tax dollars per year can be obtained by this method. Then, if the taxpayer is audited by the IRS, the present system for audits, internal appeals and tax litigation creates additional alternatives for the taxpayer to keep his money for a few additional years, and even if he has to give some of it back, that amount is the economic equivalent of a very low interest loan. Finally, all the while that the audit, appeal and litigation process is going on, there is the additional gratification of throwing some libertarian sand into the gears of the Federal bureaucracy.

David Bergland is an attorney in private practice in Newport Beach, California. He attended the Law School at the University of Southern California where he graduated with highest honors and was Editor-in-Chief of the Southern California Law Review. In addition to his law practice, David Bergland has been a professor of law regularly for the past several years at Western State University College of Law in Anaheim, California and has published articles in legal journals.