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The Sixth Circuit Concedes The Limited-Expansion Meaning Of "Includes"

My friends, I consider this to be an especially important article. Please read it through carefully, and then carefully consider each of its implications.

THIS SHOULDN'T BE NEWS, OF COURSE-- the appellate court has never ruled WRONG concerning the definition of "includes"-- even in income tax cases, as will be shown in a moment. The only exceptions have been cases which have been part of the sustained statist campaign to discourage the spread of CtC's revelations about the tax by high-visibility assaults on me (and sometimes my wife, too).

Actually, even in those "special interests of the state at stake" cases it would be too much to say the court "ruled wrong". In fact, what the court did in those cases was simply pretend to have not noticed the issues involving the tax-law relevant meaning of "includes", and so issued no ruling on the point at all (see, for instance, the evasions detailed here).

But finally, having been made incapable of evading the issue, the court has issued an actual ruling and has been forced to acknowledge-- even in a case with "Hendrickson" in the caption-- that "includes" has precisely the limited expansion, distinguished-sub-class-creating meaning explained in CtC (and elaborated upon here, here here and here). Hooray! About time!!

Of course, the court didn't just wave the white flag, note that its entire body of precedent (and that of every other circuit and the Supreme Court) supported the proper (CtC-stated) construction of "includes", and admit outright that this construction applies even where its doing so is adverse to the state's corrupt interests in as substantial a way as is true concerning CtC's revelations. Instead, the court did its very best to make its acknowledgement hard to see...

IN ORDER TO LAY BARE THE SIXTH CIRCUIT'S ADMISSION, it will be helpful to first take note of a basic legal principle articulated by the 2nd Circuit Court of Appeals in Gray v. Great American Recreation Association, Inc., 970 F.2d 1081 (2nd Circuit, 1992):

“‘The law creates a presumption, where the burden is on a party to prove a material fact peculiarly within his knowledge and he fails without excuse to testify, that his testimony, if introduced, would be adverse to his interests.’'  Meier v. CIR, 199 F.2d 392, 396 (8th Cir. 1952) (quoting 20 Am.Jur., Evidence §190, page 193).”

The Supreme Court put is this way in Baxter v. Palmigiano, 425 U.S. 308, 318 (1976):

"[A]s Mr. Justice Brandeis declared, speaking for a unanimous court in the Tod case, ...: "Silence is often evidence of the most persuasive character." 263 U.S. at 153-154. And just last Term, in Hale, supra, the Court recognized that "[f]ailure to contest an assertion . . . is considered evidence of acquiescence . . . if it would have been natural under the circumstances to object to the assertion in question."

The Fifth Circuit cuts straight to the chase:

“Silence can ... be equated with fraud where there is a legal or moral duty to speak, or where an inquiry left unanswered would be intentionally misleading. . .”  U.S. v. Prudden, 424 F.2d 1021, 1032 (5th Circuit, 1970).

To summarize this well-settled (and self-evident) legal principle: When a proposition is clearly stated and it is the duty of the respondent to address it, or would be in the respondent's interests to dispute or rebut it if possible, a failure to do so is an admission of the proposition. In the rules of evidence, this is known as "admission by silence".

A popular judicial version of "admission by silence" is the "straw-man" evasion, in which the proposition asserted is conveniently misunderstood as being something else which the court CAN dispute or rebut, and an adverse ruling is declared in the matter. What has REALLY happened is that the actual proposition has been met by silence, and thus, admitted to be correct.

NOW KEEPING IN MIND THE "ADMISSION BY SILENCE OR BY STRAW-MAN EVASION" PRINCIPLE, let's look at the Sixth Circuit's December, 2013 ruling concerning an argument hinging on the construction of "includes" in a Title 26 statutory definition. Recognize as we go that there could be no case or occasion more demanding of a flat rebuttal to the proposition that "includes" provides only for a limited expansion of a sub-class distinguished by the characteristics unique to the listed exemplars than this one, IF such a rebuttal could be made...

Here's some background. The ruling was on a motion by which I make a jurisdictional challenge to my 2009 kangaroo-court conviction for allegedly not really believing my earnings don't qualify as "wages" when I said I did on my tax returns.

My challenge, in relevant part, was over the government's failure to allege or even attempt to prove in trial that I am among the custom-defined sub-class of persons to which the charges in the indictment against me are able to apply. The statutory definition of that sub-class deploys the [also] statutorily-defined term "includes".

I had moved the trial court to dismiss the charges based on my not being in the sub-class specified. The trial court made the absurd decision in response to that motion that the statutory definition was unlimited in meaning (and thus completely and incomprehensibly superfluous). Rosen did not deny that the definition did, in fact, control the class of persons capable of violating the statute I was accused of violating; he simply said that sub-class was NOT a sub-class, but was everybody.

I appealed that decision in my initial appeal of the conviction, and the appellate court contrived to overlook the issue entirely. In late 2012, I filed a Motion to Vacate on these and a couple other grounds. Gerald Rosen, as before, denied that motion, and I presented the motion directly to the appellate court, which therefore could not pretend to not notice the issue this time.

The relevant person sub-class IS a sub-class, of course. The use of "includes" in its definition does not change that fact; I am not in that sub-class (and the government never even made an effort to prove the contrary regarding this key element of the offense, in any event); and the Sixth Circuit has now admitted each of these things by silence and straw-man evasion.

HERE IS MY MOTION, in relevant part. Please don't be intimidated by the fact that this is a portion of a legal brief!

It IS a little long, and some of the supporting authority and requisite logic-chaining may seem a bit tedious. But as you'll see, in order to make the issues incapable of being misunderstood, I not only kept things simple but also included illustrations.

What's more, all you really need to get from your read-through is that what is being argued is simply that a relevant statutory definition of subject persons exists in the law; that because this is so, one can only be subject to the affected statutes if within that definition; and that the deployment of "includes" in the statutory definition does not expand that definition into superfluity or meaninglessness by having the constructive meaning of "also includes".

The Brief

(Click on the images below in sequence, or view as a .pdf here. Start at "BACKGROUND")

 Again, now, all you really needed to get from your read-through is that what is being argued is simply that a relevant statutory definition of subject persons exists in the law; that because this is so, one can only be subject to the affected statutes if within that definition; and that the deployment of "includes" in the statutory definition does not expand that definition into superfluity or meaninglessness by having the constructive meaning of "also includes".

Now, here is the language by which the appellate court denied my appeal:

"The term "person" as used in the tax code has been consistently, and plainly defined as any individual. 26 U.S.C. § 7701(a)(1); United States v. Maggi, No. 98-5570 WL 96651, at *2 (6th Cir. Feb 5, 1999)" says the court. Well sir... Kinda sounds like a ruling disputing my arguments, doesn't it... "Any individual..." Kinda...

Actually, the Maggi court never said what this excerpt from the ruling is meant to suggest.

We almost don't need to look at what the Maggi court actually said in its unpublished decision. An assertion that "The term "person" as used in the tax code has been consistently, and plainly defined as any individual"-- meant to be taken as a reference to the scope of § 7343 (as it is misleadingly presented here)-- would be (and is) outright nonsense. You just saw that in the repeated citations in my brief of cases saying exactly the opposite. You also saw the Supreme Court holdings by which the appellate court's claim HAS to be the nonsense that it is.

In fact, there are NO cases saying what the appellate court wants it to be imagined that the Maggi court, to which it is deferring authority, said. Not one, including the Maggi court.

First of all, the Maggi court isn't referring to § 7343 at all. Look closely. The "person" definition to which it refers is the code-wide, undistinguished definition of "person" at 26 U.S.C. §7701(a)(1).

Second, look at ALL of what the Maggi court says, not just the superficially suggestive, misleading excerpt presented by the court in its pretense of citing a precedent standing against my argument:

The final issue is Maggi's contention that his status as a federal employee removes him from the definition of a "person" who may be guilty of a felony under 26 U.S.C. § 7201. The term "person" as used in the tax code has been consistently, and plainly, defined as any individual. 26 U.S.C. § 7701(a)(1).

Get it? The Maggi court never addressed the question of whether the § 7343 definition of "person" is limited, and never said it was not (or that it is "any individual").

All the Maggi court ruled is that federal employees are not excluded from a "person" definition simply because they are federal employees. The court is in no way saying that "any individual" automatically qualifies for the § 7343 definition.  The court is only observing that being a federal employee-- or any other KIND of individual-- doesn't automatically DIS-qualify someone for the definition. Certainly true, because that kind of status is not a relevant consideration.

What qualifies one for 7343, as has been shown, are one's particular duties relative to the alleged offense, not one's  broadly-painted employment status. Any individual can theoretically have such duties (or at least, no individual is barred from the possibility), but it is the having of the duty that makes one a "person" in 7343 and limits those "persons" accordingly, and the Maggi court says nothing whatever to the contrary.

THUS, THE STATEMENT BY THE SIXTH CIRCUIT IN ITS RULING ON MY MOTION WAS COMPLETELY INAPT, and deliberately so. It is not the least bit credible that the court mistook my argument as being that the code-wide definition of "person" was limited, or that I was inherently excluded from that definition or the § 7343 definition because of something about my status.

 Now, here's the "money" line: the Sixth Circuit plainly resorted to this sleazy pretense BECAUSE IT HAD NO CHOICE. It does not dare attempt to dispute the "limited expansion only" effect of "includes" on its own because it cannot dispute it.

The circuit court couldn't come up with a single precedent from any other court disputing the "limited expansion only" effect of "includes", or supporting the proposition that the § 7343 definition is automatically all-inclusive because there are none.

Instead of disputing my arguments, the court admits their correctness by default and by its cheap "straw-man" evasion.

[J]ust last Term, in Hale, supra, the Court recognized that "[f]ailure to contest an assertion . . . is considered evidence of acquiescence . . . if it would have been natural under the circumstances to object to the assertion in question."

Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)

AS I NOTED EARLIER, THERE COULD BE NO CASE more demanding of a rebuttal to CtC's teaching on the meaning and effect of "includes" if such a rebuttal could be made. The government devotes a huge body of resources and effort to trying to persuade those who don't yet know better that what CtC says about the law is wrong. A number of judges have done the same, spending both ink and moral capital issuing rulings intended to discourage and intimidate Americans who have learned what CtC teaches.

Thus, an opportunity to issue a flat-out circuit-court-level ruling squarely debunking what CtC teaches about "includes" as presented in my motion-- which is a very key element in the structure of the laws by which the tax is kept in conformity with its Constitutional limits-- would be seized on firmly, IF what CtC teaches about "includes" COULD be debunked.

All the court would have needed to do, if it could have done so, is declare that "includes" means "also includes", and I'm therefore wrong-- denied, end of story. Instead, the court engages in this elaborate contrivance designed to make it APPEAR to have said this, while actually NOT saying it.

In light of these considerations, and the manifest desire of the court to register opposition to my arguments at any cost, the court's failure to issue that debunking (or even attempt it) and its resort to a "straw-man" evasion instead, is not merely a judicial affirmation of my arguments (and CtC). It is a RESOUNDING judicial affirmation of the correctness of my arguments and CtC, and all the more so for amounting to an "admission against interest" (however corrupt it is for the court to harbor an "interest" in defiance of the truth and the law).

The court, and those it serves, are just hoping no one will look past the "Denied" to discover what its decision really upholds.

Think about the implications of this admission of the correctness of CtC on this very significant issue. Recognize, thoroughly, that what CtC teaches about the law IS CORRECT. Think about the broader implications of a federal court feeling compelled to resort to evasions when faced with CtC's revelations about the tax and the law. Think about our responsibility as grown-up Americans to not let our rule of law vanish away by sitting idly while corruption does its dirty business.

THE ADMISSION BY THE CIRCUIT COURT of CtC's correctness on "includes" is gratifying, even though it occurs in the context of a contrivance by which the court denies my motion to vacate my bogus conviction on the very grounds the court admits to be valid. More, the admission is important-- but only if it gets used both to expose the corruption in the courts and to support the truth about the law. Doing both is easy.

CITE THIS CASE! Wherever appropriate, in administrative proceedings, in litigations, in newsgroups and forums! Here's some sample language:

"In Peter Hendrickson v. United States, No. 13-1630 (6th Cir. 2013), the Sixth Circuit Court of Appeals acknowledges that "includes" provides only for limited expansion of a defined term to embrace unlisted members of the special class defined by the unique characteristics of the listed exemplars, by its deliberate evasion of Hendrickson's actual argument on the issue, and its careful erection of a "straw-man" to which it actually directed its ruling. Thus, the court's actual legal decision in the case was that "includes" is a "limited expansion" modifier as described above, consistent with ALL of the circuit's precedents, and those of all other circuits and the Supreme Court, as well."

Invite any argument to the contrary, and then lay out the truth. Your legal argument concerning "includes" (and/or that involving any term in whose definition it is deployed) will be supported, and the corruption of the courts-- and of anyone arguing against you-- will be exposed.

 Bad men need nothing more to compass their ends, than that good men should look on and do nothing.

-John Stuart Mill

P. S. If any court or agency has made admissions by silence or "straw-man" evasion to YOUR educated assertions, positions or propositions, and you haven't exposed and trumpeted them in every newsgroup, forum and local newspaper, you are watching softballs go by that you should be banging out of the park to change the game. Get BUSY!!

Here's an example to add to the one I discuss above: An IRS CDPH officer, or anyone else, declares something to the effect of, "Taxpayer argues that his wages are not income (yadda, yadda yadda)..." when what you REALLY said was that your earnings are not "wages" (and that it's the other side's burden to prove the contrary, if it can). This is a flat-out admission that not all earnings are "wages", and, by extension, that any earnings whose alleged "wage" status has been formally disputed must be proven to be in that special sub-class.

If your declarant believed the contrary to be true, and that all earnings ARE "wages" he she or it would have simply said that. NOT saying it when that is plainly the actual proposition in play, is an admission by silence. Substituting an inaccurate "straw-man" and declaring against it instead of against the actual proposition is a further, more deliberate and explicit admission.

ANALYZE any adverse stuff to which you have been subjected. WRITE IT UP!! USE IT!!

P. P. S. Because I know that there has long been misunderstanding among many folks on the subject, I'll take a moment to mention that "individual" in the tax law DOES include, among other possibilities, "natural persons". Please see this for more on that subject if necessary.

P. P. P. S. Those who are interested can see my entire motion to vacate here, the utterly mendacious government response to it here, and my reply to that response here. The appellate decision can be seen in its entirety here.