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Why Aren't People Suing?

"Frivolous return penalty" threats are egregious

SO, I WONDER HOW MANY FOLKS have thought about the fact that the First Amendment prohibits even a bogus "frivolous return penalty" threat, such as the customized "3176C" notices that a few educated filers have received over the years (see here, here and here for some examples)? After all, a "frivolous penalty" threat amounts to a threat by the government to punish someone for saying what the government wishes they would not say (or for not saying what the government wishes they would say).

Even when the threat is entirely reliant on the timidity and cooperation of the target for its effect or an outright hoax, the object of the exercise is to control the target's speech. Thus even when technically toothless it remains a gross violation of the Constitution and the victim's rights.

The threat is also intended to influence the target into at least withdrawing a claim to the refund of withheld or paid-in property, which would then default to government ownership (and really, the threat is meant to coerce an active endorsement of a government claim to the property, giving the appearance that the government's taking control of that property is proper and beyond legal challenge). Thus, these "frivolous penalty" threats are doubly criminal, being also violations of Fifth Amendment due-process rights, which provide for any litigant/claimant's right to speak on his/her own behalf.

AFTER ALL, PROHIBITING INHERENTLY CORRUPT exercises of state power of precisely this sort is the reason we have a "freedom of speech" element in the First Amendment. Americans can't be made to say things for the government's benefit, nor punished for saying things the government finds inconvenient or at its expense-- this is perhaps the most thoroughly-settled aspect of Constitutional law there is. See a nice summary of Supreme Court case-law on this point in sections A., B. and C. of this paper.

Plainly, there is no exception to the amendment's provision whereby the government can simply argue, "We can punish you until you say what we want you to say, either directly or by being silent in the face of the allegations of others, as long as we call your expressions "frivolous", or exercise the coercion in the context of taxation..."

I think people subjected to this rights violation should be furious and in a suing mood, don't you?

(BTW, as an interesting side note, consider the limiting factor built in to the legitimate application of the 'frivolous return penalty" provisions, confining their application to those who are speaking not for themselves, and not as sovereign individuals in their own capacity, but on behalf of someone else, and as a legal duty, not an elective act:

26 USC § 6671 - Rule for application of assessable penalties

 (b) Person defined The term “person”, as used in this subchapter, includes an officer or employee of a corporation, or a member or employee of a partnership, who as such officer, employee, or member is under a duty to perform the act in respect of which the violation occurs.

The relevant speech of those within this specialized sub-class of "person" can perhaps be deemed outside the First Amendment's ambit. By this mechanism the "frivolous return penalty" is harmonized with the Constitution.

By the same token, the First Amendment prohibition of government speech-violations against undistinguished persons means that the sub-class defined at 26 USSC § 6671 must necessarily be confined to those described in that definition, per CtC scholarship. If that sub-class were not so confined, but deemed to extend to any kind of persons other than those circumscribed by a "limited-expansion-only" construction of the definition, the "frivolous penalty" would be unconstitutional.

BTW, a discussion and analysis of several statutory limitations beyond just the language of 6671(b) which also control the "person" who can be subject to "frivolous return penalties" can be found on this page.)

"Like a muddied stream or a polluted fountain is the righteous man who gives way before the wicked."

-Proverbs 25:26

P.S. Some state governments have statutes very explicitly criminalizing efforts to coerce people, such as those discussed above. See this page for more information.

P.P.S. See the note on 'Affidavit in Support'.