A Tax Lawyer Refutes Glenn Beck's Call to Lawlessness

07/02/2009 05:12 am ET | Updated May 25, 2011

Sometime last week Glenn Beck posed a question: what if one million people did not pay their taxes? Beck couched this statement in the context of civil disobedience, citing a quote from Gandhi. He also added a disclaimer: ""I want to be clear on one thing, I am not advocating that people should not pay their income tax." While this is a nice disclaimer, it is (in my opinion) too little to blunt the central thrust of his argument/editorial. In essence, Mr. Beck was advocating a criminal act.

While I cannot comment on the first amendment issues regarding Mr. Beck's statements, I can tell you the following points about tax law.

Article 1, Section 8 of the Constitution states Congress has the power to lay and collect taxes. Secondly, the 16th Amendment states: "The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration." In other words, the income tax is constitutional if Congress wants to use that power. It has. If you don't like it, then I suggest you work to repeal the 16th Amendment and Article 1, Section 8 of the Constitution.

The US code, (26 USC 6012) states: "Returns with respect to income taxes under subtitle A shall be made by the following:...Every individual having for the taxable year gross income which equals or exceeds the exemption amount, except that a return shall not be required of an individual." In other words if your income exceeds the exemption amount you have to file a return. That's the law.

Black's Law Dictionary (copyright 2004) provides the following definition of tax evasion: "The willful attempt to defeat or circumvent the tax law in order to illegally reduce one's tax liability." Put another way, if your intention is to not pay taxes when they are owed the government can hit you with fines and jail time.

However, taxpayers are allowed to plan their affairs to minimum their tax liability. This was the essential ruling in Gregory v. Helvering a 1935 Supreme Court case. That case stated, "The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted."

If as a lawyer I engaged in any sentiment similar to what Mr. Beck is advocating I would be disbarred. Period. No ifs ands or buts. While I'm sure Mr. Beck does not see it that way, the reality is his statements are encouraging people to think about breaking the law.

But more to the point. Here is what infuriates me about the tea party, anti-tax people. Where were these people from 2001-2006 when the Republican dominated Congress (starting in 2003) added over $500 billion dollars of net new debt per year to the total national debt? Here is a listing from the Bureau fo Public Debt:

09/30/2008 $10,024,724,896,912.49
09/30/2007 $9,007,653,372,262.48
09/30/2006 $8,506,973,899,215.23
09/30/2005 $7,932,709,661,723.50
09/30/2004 $7,379,052,696,330.32
09/30/2003 $6,783,231,062,743.62
09/30/2002 $6,228,235,965,597.16
09/30/2001 $5,807,463,412,200.06
09/30/2000 $5,674,178,209,886.86

When their party was in power, deficit spending was OK. There were no tea parties, or calls to not file your taxes. But when a Democrat does it they feign outrage and scream from the top of their lungs that we're all going to hell in a handbasket. The double standard they apply is stunning.

In addition, I was against the Iraq War more or less from the beginning. My arguments against the war were primarily economic; simply put you can't cut taxes and engage in a protracted war and not run massive deficits. As the chart above demonstrates, you really can't. If I had written a column saying withholding your taxes from a war which you disagreed with was patriotic the entire right wing noise machine would have come down on top of me like a ton of bricks. Yet that is exactly what they are doing now. The bottom line is Beck and his ilk are nothing more than 10 year old children who scream when they don't get their way.

So -- to those of you who are thinking about not filing your taxes, it's really not a good idea.