Finding and Exploiting Flaws in Tax Laws

Mark Wilks was arrested and sent to Brixton Prison for failing to pay his wife’s income taxes. The case became a cause célèbre in the British women’s suffrage movement and an embarrassment to the British government and its tax authorities.

This is a good example of how careful study of the law can help tax resisters find and exploit flaws that hold the tax system or its enforcement arm up to ridicule, make them unworkable, or make them vehicles for additional resistance or propaganda opportunities.

Are you sure you are not paying too much tax to John Bull? We have recovered or saved large sums for women taxpayers. Why not consult us? It will cost you nothing. Women Taxpayer’s Agency (Mrs. E. Ayres Purdie), Hampden House, Kingsway, W.C. Tel 6049 Central.

Ethel Ayres Purdie, resident tax law expert of the Women’s Tax Resistance League, discovered the vulnerability. The Income Tax Act, she wrote, “is a most fearsome piece of composition. Its language is archaic and tautological, it rises wholly superior to punctuation, and proceeds breathlessly through one hundred and ninety-four clauses.” But one of those clauses held a fatal flaw.

The “Married Woman’s Property Act” of was a reform that allowed married women to maintain control of their property rather than relinquishing it to their husbands’ control upon marriage. But the earlier () Income Tax Act still considered the husband to be solely liable for the income taxes of both the husband and wife.

At first, when Elizabeth Wilks began resisting her income tax, the government responded by seizing and selling her property, but when this quirk in the law was discovered, tax resisters like Wilks protested that the government could not legally seize her property since as a married woman her taxes were legally owed by the him in the marriage. So the government went after Mark Wilks instead.

Mark Wilks, for his part, insisted that he could hardly fill out an income tax return since he had no legal right to demand information from his wife about her income! Besides, his modest income and lack of property in his own name meant that he could not afford to pay the taxes on his wife’s considerably larger income (he did pay the tax on the portion of their joint income that was attributable to his own income, though his income was low enough that by itself it would not have been taxable). “I am informed that I am liable for taxes levied on her income,” he wrote “while at the same time the law places all her property entirely beyond my control.”

Meanwhile, the Women’s Tax Resistance League trumpeted the arrest of Mark Wilks and his indefinite imprisonment — “for non-payment of taxes not his own and due on an income over which he has no control and whose amount he can only guess at” — as proving their contention that not only should women resist the income tax, but that married women were not even legally obligated to pay it and those who were paying it were operating under a legal delusion.

The imprisonment of Mark Wilks was a propaganda coup:

For what do the arrest and imprisonment of Mark Wilks mean? We are perfectly certain that it will not last long. Stupid and inept as it has been, the Government, we are certain, will not risk the odium which would justly fall upon it if this outrage on liberty went on. A Government which has much at stake and which lives by the breath of popular opinion cannot afford to ignore such strong and healthy protest as is being poured out on all sides. To us, who are in the midst of it, that which seems most remarkable is the growth of public feeling. In the streets where processions are nightly held, we were met at first by banter and rowdyism. “A man in prison for the sake of Suffragettes!” To the boy-mind of the metropolis, on the outskirts of many an earnest crowd, that seemed irresistibly funny; but thoughtfulness is spreading; into even the boy-mind, the light of truth is creeping. If it had done nothing else, the imprisonment of Mark Wilks has certainly done this — it has educated the public mind.

Wilks was released after less than a month in prison, without official explanation, and without paying the tax.

A tax resistance campaign is almost always one that butts up against the law, and it can be helpful to have campaigners who know a thing or two about legal matters. As Elizabeth Cady Stanton put it when she was considering a tax resistance campaign for women’s suffrage in America,

One thing is certain, this course will necessarily involve a good deal of litigation, and we shall need lawyers of our own sex whose intellects, sharpened by their interests, shall be quick to discover the loopholes of retreat.

Today I’ll summarize some examples of how legal study and the assistance of attorneys have made a difference in tax resistance campaigns.

Poll Tax rebels in Thatcher’s Britain

Understanding the law and the legal process was important in the poll tax rebellion — to give confidence to resisters, to support targets of government reprisals, and to make the process of tax enforcement costly and unmanageable.

Anti-poll tax volunteer Danny Burns writes:

In Bristol when the court cases started, each person with a summons, who rang into the office, was logged and sent an information pack. The same personal attention was given to people with notices from the bailiffs. At the peak of the campaign, the Bristol office was staffed morning and afternoon five days a week by different volunteers. , it was receiving over 200 calls a week. … [The volunteers included] at least five court support workers…

In every part of England and Wales local groups mobilised to provide support for non-payers in the courts. Tens, if not hundreds of activists in each region attended legal briefing sessions. These were run both by activists and sympathetic local lawyers. People were given ideas about how they might disrupt or delay the court proceedings. These included simple things, like asking for a glass of water because their throat was dry, demanding to see the identity cards of everyone present in court, to fainting in court or arranging for fire alarms to go off. People were told to demand their rights to see and read every document which was produced as evidence against them. They were also given briefings on the basic technical arguments.

By , when most of the court cases had started, virtually every Anti-Poll Tax Union in the UK had trained at least two or three of its members to become conversant with the Poll Tax law. Throughout England and Wales over a thousand people were trained to do court support work and could quote the relevant legislation. This is unique in the history of popular campaigning. The Anti-Poll Tax Unions hoped to use the legal precedent of McKenzie versus McKenzie (), which said that a person can “attend a trial as a friend of either party (to) take notes and quietly make suggestions and give advice to that party.” This person would be known as a “McKenzie friend.” McKenzie friends had no right to address the court, but they could advise the non-payer what to say. In this way everyone would be able to offer technical defences and thereby delay the proceedings.

The campaign needed lawyers only in the most technical cases. Lawyers were often seen as a liability, because they represented an individual client, and it was in their interest to get through the procedure as quickly as possible. It was in the campaign’s interest for everything to proceed as slowly as possible. Nevertheless, legal knowledge and guidance was essential. This arrived with the creation of the Poll Tax Legal Group… [which] researched legislation and case law. It set up a network of lawyers throughout England and Wales who could support the legal challenges of Anti-Poll Tax groups and produced over 30 accessible legal bulletins on the Poll Tax and a book called To Pay or Not To Pay. These underpinned the legal needs of the movement and helped ordinary people to get to grips with the law they needed to use.

Delaying tactics were mixed with serious legal technicalities. Councils were challenged for sending notices to the wrong addresses. Given the rate at which people moved houses, it was difficult for the councils to keep up, and as a result many cases were dropped because people hadn’t received proper notice. Big legal challenges were also made over “correct procedures.” These came in the first few weeks and resulted mostly from the inexperience of councils in dealing with this sort of process. The first day of Medina Council’s cases (on the Isle of Wight) is probably the most famous example. The reminder notices were sent out with second class stamps, they consequently arrived late, people didn’t receive the statutory notice which they were entitled to, and the court threw out all 1,900 cases. The council had to start again.

When police attacked an anti-poll tax demonstration in London, many of the demonstrators fought back, and hundreds were arrested. Elements of the campaign leadership distanced themselves from the defendants, embarrassed to have the campaign associated with violence. So other activists helped to form and coordinate an independent group — the Trafalgar Square Defendants’ Campaign — with the following mandate:

The campaign will:

  1. Unconditionally defend all of those arrested on .
  2. Be controlled by and be accountable to the defendants
  3. Be totally independent of any other organisation.
  4. Seek support from the whole Anti-Poll Tax movement and all other sympathetic organisations.
  5. Seek to co-ordinate the legal defence of all those arrested.
  6. Seek to build a coherent picture of events of from the point of view of those arrested.
  7. Publicise the points of view of defendants.
  8. Raise money for a bust fund, controlled by the defendants to cover their legal and welfare costs.
  9. Ensure that at all future Anti-Poll Tax events there will be proper legal cover and support for anyone arrested. This will include an office and workers to visit places of detention and look after prisoners’ welfare.

Danny Burns again:

About a dozen people volunteered to carry out the court monitoring process. They attended every hearing, systematically took notes of everything that was said, recorded the numbers of police officers and approached the defendants asking them to attend the now weekly TSDC meetings… By the summer, over 250 of the defendants had been contacted.

The TSDC ran advice sessions on prison, produced legal briefing notes and mailed out the minutes of the weekly meetings to every defendant every week. A solicitors’ group was established with a core of three, but at the peak of early activity they managed to get over fifteen solicitors involved. This proved important because the solicitors’ group managed to get hold of over 50 hours of police videos and handed them over to the campaign. The police videos were crucial in getting a lot of people off, and a number of people in the campaign worked extremely hard editing videos and rejigging them for particular trials. The solicitors’ group also got the Crown Prosecution Service to hand over a full list of all of the defendants and the names and addresses of their lawyers. The lawyers were all contacted and, although many were initially reluctant to co-operate with the campaign, they soon realised that TSDC had a lot of information which their clients needed.

The Dublin water charge strike

In the campaign against the Dublin water charge in , the resisters used the legal system as another avenue of protest and resistance. The Secretary of the Federation of Dublin Anti Water Charge Campaigns recalls:

Every possible legal angle was pursued by the campaign’s legal team — down to legal definitions of what constituted a householder, making the councils prove that the person they had summonsed actually lived at the address, that they owned the property, etc., etc. We weren’t doing this because we had any illusions in the impartiality of the court system. We knew that even though we were successful in finding various legal loopholes these would all be closed one by one and that the judges would be doing their best to facilitate the councils. This was demonstrated most clearly when a judge in Swords invoked the Public Order Act to close several streets around the courthouse to prevent a protest outside it.

But by contesting every detail of every summons we could make the system unworkable. There were tens of thousands of non-payers. After several months the councils had only managed to get a couple of dozen cases through the courts. Someone calculated that at the rate they were managing to proceed it would take them something like 220 years to process all the cases. And it was costing them more in legal fees than they could ever hope to take back in charges — even if they managed to bully everyone into paying.

Any time the council did manage to get a court order, it was appealed — again the objective being to clog up the system.

George Cony’s aggressive lawyers

When Oliver Cromwell knocked the English king off his throne, he did so in part in the cause of Parliamentary democracy. Upon assuming charge of the English government, however, he grew impatient with Parliament and decided to enact some taxes on his own.

One of Cromwell’s more radical supporters, George Cony, taking Cromwell at his word (Cromwell had said that “the subject who submits to an illegal impost is more an enemy of his country than the tyrant who imposes it”) decided to refuse to pay one of these arbitrary taxes.

Cony’s lawyers argued his case so successfully that Cony’s tax evasion case threatened to call the legal underpinnings of Cromwell’s regime into question. The judges in the case seemed sympathetic, and Cromwell was so alarmed that he had all three lawyers imprisoned in the Tower of London until they repented, upon which the chief-justice who was hearing the case resigned.

Hugh Williams and the Rebecca rioters

Radical lawyer Hugh Williams was of great help to the Rebecca movement in Wales — some say he was more than a legal advisor, but one of the instigators of the movement, or even “Rebecca” herself! One account says: “[Williams] did all the legal work for the rioters, also drafting various petitions for them. He was a prominent member of the Chartist movement, acting as their solicitor, and he defended the prisoners at Welshpool Assizes in July, 1839, for taking part in the Chartist Riots. He rendered similar services to the Rebecca prisoners gratuitously; but was eventually reported to the Lord Chancellor and struck off the Rolls. He, however, continued to do a considerable amount of legal work, and whenever it became necessary for him to appear in court, he invariably employed [another attorney] to appear for him.”

His familiarity with the law and the legal process helped him help the Rebeccaites translate their grievances into formal petitions, which in turn helped the Rebeccaite “people power” movement effect change in government policy.

White supremacists in Reconstruction-era Louisiana

When white supremacists in New Orleans decided to actively withdraw their consent from the mixed-race Reconstruction government of “scalawags” and “carpet-baggers” there in , they formed “The People’s Association to Resist Unconstitutional Taxation” and declared a tax strike.

Fifty-eight New Orleans attorneys signed the following statement of support:

The undersigned attorneys at law, citizens of New Orleans, engage themselves, without compensation, and as a matter of public service, to defend professionally all citizens, residents, or property-holders in this city, who shall desire their assistance in resisting the collection by municipal athorities of the taxes known as the “school-tax,” the “park-tax,” and the “metropolitan-police tax,” and other taxes the collection of which may be lawfully resisted.

The Smith sisters of Glastonbury

Abby & Julia Smith refused to pay taxes to a local government that denied women the vote and that took advantage of this by excessively taxing women’s property in order to ease the tax burden on male voters and to redistribute the money to male patronage recipients. In response, the government periodically seized and auctioned off the Smith sisters’ cows (“Votey” and “Taxey”). That failing to discourage the Smiths, the town decided to fight dirty, and the Smiths fought back legally in a way that brought further attention to their cause:

[A]n inconspicuous advertisement in the Hartford Courant announced the sale at public auction of fifteen acres of Smith pasture land on , a date contrived to fall just before the grass would be cut. Though the sisters set out on that day with ample funds, the collector adroitly shifted the meeting place, and when the two women caught up with the auction, the gavel had just gone down transferring for $78.35 land worth nearly $2,000 to none other than a covetous neighbor who had tried for years to get possession of it.

Abby and Julia were daughters of a lawyer. They brought suit against tax collector George C. Andrews on the grounds that he had violated a law which plainly stated that movable property must first be sold for unpaid taxes before real estate could be seized. The case was tried in the home of Judge Hollister of Glastonbury, who gave a verdict in favor of the sisters and fined Andrews damages of $10. Threatening terrible consequences, Andrews appealed the case.

The new trial, which lasted three days in the Hartford Court of Common Pleas, had a farcical aspect. There were misplaced records; there was distorted evidence. The judge, in absentia, reversed the Glastonbury decision and decided in favor of collector Andrews. At this point the Smiths’ lawyer backed out. Abby and Julia, both now in their eighties, began the study of law with the intention of conducting their own case. Happily a capable lawyer finally agreed to place a second appeal before the Court of Equity.

For two years a wide and sympathetic public followed this devious litigation. Across the nation, even in England and France, editors and columnists lauded the Glastonbury cows in prose and poetry. Reporters visited the town, drank tea in the elm-shaded farmhouse, admired the cows, polled public opinion in Glastonbury, and returned with highly flavored and often inaccurate stories. With whatever condescension these reporters arrived, they seem, one and all, to have found the Smith sisters irresistible. The hospitality, wit, and charm of the two elderly spinsters captivated the world beyond Glastonbury.

When the final verdict was made in their favor, in , women the country over rejoiced. To be sure, Julia and Abby did not vote in Glastonbury, but from that time on their property was undisturbed.

The Greek “Won’t Pay” movement

The current Greek “Won’t Pay” movement, which is resisting a number of stealth taxes the government has added to things like utility bills and road tolls, has also carried its struggle into court — at one point winning an injunction that forbade the state power company from cutting the power of people who were refusing to pay the new utility bill tax.

Newly-enfranchised Pennsylvania women

When women in Pennsylvania won the vote, many discovered to their chagrin that they had also become subject to taxes to which they had previously been immune. Thousands of them, deciding the package was not worth it, decided to refuse to pay.

And they were able to take advantage of a quirk in an law that did not permit the authorities to send women to prison (though they could imprison men) for tax refusal:

It took a few years for the state legislature to pass a law allowing for the jailing of women who refused to pay their taxes.

Maurice McCrackin’s lawyers

Not all legal help is helpful. When American war tax resister Maurice McCrackin was convicted of refusing to cooperate with an IRS summons, he was following a strategy of complete noncooperation that he kept following right into the courtroom — where he refused to stand for the judge, refused to plead to the charges, refused to answer questions, refused to consult with his court-appointed attorney, fasted while behind bars, and had to be wheeled into and out from his court appearances because he wouldn’t walk there under his own power.

For the same reason, upon his conviction, he emphatically said that he was not interested in pursuing an appeal: “I said I wanted to file no appeal, nor did I want steps taken to keep the door open, so an appeal could be perfected later. I do not recognize any appeal on my behalf… My position is not changed. This is a moral, not a legal, struggle.”

One of the lawyers who had been assigned to defend him, however, convinced that the judge had betrayed bias against McCracken in his statements from the bench, said that he intended to appeal anyway.

“Constitutionalist” tax protesters

And then there are the “Constitutionalist” “show me the law!”-style tax protesters. For years they have been bedeviling the IRS with their baroque, ever-evolving, quasi-legal arguments and pleadings based on the real Constitution, or common law, or tortured interpretations of excerpts from a variety of cherry-picked statutes and court rulings.

While they typically know just enough about the law to get into trouble, without knowing enough to get out again, there’s no question that they cause headaches a-plenty for the powers that be. Alas, this does not seem to actually be their objective. Instead, they seem convinced that they’re not just whistling Dixie, but they’re right, and if they can just figure out how to pick the lock of the court system with the right argument, they’ll be able to walk out free into a new world where their Constitution holds sway and the perverters of the true law are vanquished.

Alas, most of what they have discovered is an enormous and inventive catalog of things that don’t work, so in spite of all of their creativity and effort, they have given the rest of us little to work with. But if you ever have a “that’s so crazy it just might work!” idea about going up against the IRS, you might want to research these folks first — they may have already tried it.

And every once in a while they rack up a courtroom victory — not often one that amounts to much in real terms, but it fuels the movement. One observer of the movement reacted to a twist of this sort by saying: “This is going to encourage thousands more people who were on the fence, who were paying taxes only because they were afraid they would be criminally prosecuted. If too many people do this, the tax system will collapse because it is based on people voluntarily complying.”

(I’m most familiar with the U.S. variety, but similar groups exist in Canada, the U.K., and probably elsewhere. Earlier this year in England, for instance, hundreds of Constitutionalist tax protesters stormed a courtroom where one of their number was on trial, whereupon they attempted to put the judge under citizens arrest, and began making their own rulings from the bench!)

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