Surrender Yourself as a Criminal for Having Paid Taxes

A counterintuitive tactic that has been used in some tax resistance campaigns is for resisters to turn themselves in for prosecution for having paid taxes.

For example, a group of Welsh war tax resisters went to the police in 1996 and “confessed to the crime of paying income and VAT taxes used for British nuclear programs, in violation of international law” (the police declined the invitation to arrest them).

The legal reasoning, in the abstract, is not entirely far-fetched, but it is a sort of affected naïveté to expect the government’s law enforcement apparatus to respect it. This sort of tactic is a form of symbolic protest and can help to educate people about their accountability for government activities that are conducted with their acquiescence and support.

The Nuremberg Principles

Is there anything to the theory that a taxpayer is legally culpable if they cooperate with the illegal acts of the government?

The Nuremberg Principles make this a plausible argument. The people who drafted those Principles were trying to articulate what they supposed to be international, ever-present, and self-evident crimes. This was meant to solve the problems of jurisdiction and ex post facto law in the trials of Nazi war criminals, and was also meant to formally outlaw such things as aggressive war. The Principles state, in part:

Complicity in the commission of a crime against peace, a war crime, or a crime against humanity is a crime under international law.

and also:

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

A number of war tax resisters have taken these Principles as an inspiration. Some have even adopted the conceit of saying they fear if they pay taxes they risk being prosecuted under the theory the Principles articulate.

One American war tax resister told me that when he refused to pay his taxes in 2003, “I also asked the IRS [Internal Revenue Service] if they could provide legal assurance that paying taxes would not leave me open to prosecution under the Nuremberg Principles. The IRS replied that they could not provide a quick response to my letter since they had received ‘a large number of similar requests.’ ”

Conspiracy Theory

A blogger once confidently told me: “If you pay taxes, you are as responsible for war as the soldier who kills people. If you pay taxes, you are directly responsible for every bad thing government does. Paying taxes is immoral.” Gandhi had a similar thought:

Most people do not understand the complicated machinery of the government. They do not realize that every citizen silently but none the less certainly sustains the government of the day in ways of which he has no knowledge. Every citizen therefore renders himself responsible for every act of his government. And it is quite proper to support it so long as the actions of the government are bearable. But when they hurt him and his nation, it becomes his duty to withdraw his support.

Arguments like these bear some resemblance to the legal concept of “conspiracy.” One set of jury instructions about criminal conspiracy put it this way:

[W]here several persons conspire or combine together to commit any unlawful act, each is criminally responsible for the acts of his associates or confederates committed in furtherance of any prosecution of the common design for which they combine. In contemplation of law, the act of one is the act of all. Each is responsible for everything done by his confederates, which follows incidentally in the execution of the common design as one of its probable and natural consequences, even though it was not intended as a part of the original design or common plan.

To prove “conspiracy” in the this sense, you have to show that the conspirators agreed to work together to achieve some common end, and that either the end itself, or the methods they chose to reach that end, were illegal. This isn’t as hard to prove as it might sound at first. You don’t necessarily have to prove that the conspirators actually met or signed onto a formal plan. As another set of jury instructions put it:

It is not necessary, to constitute a conspiracy, that two or more persons should meet together, and enter into an explicit or formal agreement for an unlawful scheme, or that they should directly by words or in writing, state what the unlawful scheme is to be, and the details of the plan or means by which the unlawful combination is to be made effective. It is sufficient if two or more persons, in any manner or through any contrivance, positively or tacitly, come to a mutual understanding to accomplish a common and unlawful design.

and another:

[A]ll who take part in a conspiracy after it is formed and while it is in execution, and all who, with the knowledge of the facts, concur in the facts originally formed and aid in executing them, are fellow conspirators. Their concurrence, without proof of an agreement to concur, is conclusive against them. They commit the offense when they become partners to the transaction or further the original plan.

Do taxpayers meet this sort of qualification? If you put on your prosecutor’s-hat, you might look at these instructions and think, “sure, I could make the charge stick.” But if I’m defending a taxpayer against a charge of conspiracy, I’ve got a good trump card to play: If my client is accused of conspiring with a government by paying taxes to it—how can you suggest that there was some sort of “agreement” or “mutual understanding” if the government had to threaten my client with penalties for noncompliance? That doesn’t sound like an agreement to me: my client isn’t an accomplice, but a victim!

Duress—How Much Can it Excuse?

But just how good of a defense is it to say you were paying taxes under duress? Can such an argument always relieve you of all responsibility, or does it only work when certain conditions are met, or only relieve you of a certain amount of responsibility? How much compulsion must the government use before it absorbs responsibility? Is there a threshold? Does it depend on what they’re trying to absorb responsibility for?

After all, it couldn’t be the case (could it?) that a government could “force” you to murder someone by threatening you with a small fine for refusing—and that the government could take all of the guilt off your shoulders in this way if you were to comply.

Alas, when people debate the ethics of tax paying and of tax resistance, they tend to regard government compulsion as an all-or-nothing sort of thing, and so questions like these are left unaddressed.

American abolitionist William Lloyd Garrison said at one point that it was wrong to willingly pay taxes to a government that upholds slavery, but that to excuse yourself it is sufficient for you to announce that you are not paying willingly, and to strike an attitude in accord with that declaration:

[A person] may consent peaceably to yield up what is demanded of him, but not without remonstrance, and only as he would give up his purse to a highwayman. He will not recognize it as a lawful tax—he will not pay it as a tax—but will denounce it as robbery and oppression.

The proper thing to do when the tax collector comes calling, in this school of thought, is to refuse to pay voluntarily but to submit peacefully to distraint of property. But one critic argued that such passive tax resistance is really just pointless, passive-aggressive behavior (something like the “petulant mode” of protest I warned about):

It may well be questioned if the payment of rates or taxes is voluntary at all, since the account is presented in the form of a demand, and not a polite request. Inasmuch as payment is compulsory in any case, is not Passive Resistance merely an awkward, expensive, and an inconvenient mode of payment for all concerned?

It’s easy to confuse these two cases:

Someone actually forces you to do something (such as forcing you to stay in prison by locking the doors).
Someone threatens you with unpleasant consequences if you do not do something.

In the first case, you don’t have options to choose from, so you don’t have any blame for what you’re stuck with. In the second, though, it is merely that the characteristics of your options have changed. You still have a choice to make, and that choice can be praiseworthy or blameworthy.

Hannah Arendt, who studied the distressing ease with which the engineers of the Holocaust obtained the cooperation of their collaborators, warned against the idea “that to be tempted and to be forced are almost the same.” She was fond of quoting Mary McCarthy on this question:

“If somebody points a gun at you and says, ‘Kill your friend or I will kill you,’ he is tempting you, that is all.”

If the tax collector says “give me your money or else,” that isn’t the end of the inquiry, but the time to ask “or else what?” and then to weigh the options. If I believed the blogger’s argument that the tax collector was saying “be directly responsible for every bad thing government does or else” I’d be asking “or else what?” with bluff-calling incredulity.

When You Eat a Chiquita

Can you be found legally guilty for payments you made under duress? You certainly can, under some circumstances anyway. Look at what happened to Chiquita (the banana company).

Chiquita had been operating in Colombia and, as a cost of doing business there, had to pay taxes to some of the governments operating in that country. Three of those governments were designated terrorist organizations by the U.S. government, which prohibits anyone from providing funding to such organizations. There is also an international agreement that prohibits funding terrorist organizations. It says:

Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out:

(a) An act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex; or

(b) Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.

Chiquita pled guilty in a plea bargain and was hit with a $25 million fine.

It’s Caesar’s Fault

J.G. James, the critic of “Passive Resistance” whom I quoted earlier, was an orthodox believer in law and government. He felt that when taxes or tax expenditures conflicted with conscience, the proper response was to do what could be done within the law to rectify the problem, but to go no further:

[I]t is the duty of a conscientious citizen to pay an unjust charge if he has tried in vain to prevent the measure passing into law, on the ground that he is no longer responsible for the expenditure of public funds after he has done his utmost to control that expenditure by legalized means.

This argument—that once the money is out of your hands you are no longer responsible for how it is spent—comes up frequently in debates about tax resistance, often even from tax resisters themselves when they try to explain the limits of their resistance.

For instance, G.W. Gillespe was a conscientious objector during the American Civil War who refused either to enlist or to hire a substitute to serve in his place. But he said he would have been willing to pay a “militia exemption tax” to get out of service if he could afford it. He explained:

[T]he idea of hiring a man to kill for me would implicate me in the crime; so I refused to give even five cents for a substitute.

If I had had three hundred dollars, I could conscientiously have given it to Caesar as a last resort, to get exempt from the bloody field of carnal strife. Some tried to persuade me that it was just as bad to pay the money as to hire a substitute, as the money was for that purpose. The difference is great. The Lord will not hold me accountable for the mischief that money, taken from me by force, would do when employed by others. Caesar demands taxes of us; we pay them, according to the instruction and example of our Lord. We render unto Caesar that which is Caesar’s, and Caesar hires a man to shoot his enemies for him; are we to blame? By no means. But to hire a man to fight in my place would be like hiring a thief to steal in my place: Both guilty.

Rendering unto Caesar

Here we hit one of the big stumbling blocks that Christian tax resisters have run into. The New Testament is distressingly explicit, in Romans 13:

Everyone must submit himself to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. Consequently, he who rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves.… [I]t is necessary to submit to the authorities, not only because of possible punishment but also because of conscience. This is also why you pay taxes, for the authorities are God’s servants, who give their full time to governing. Give everyone what you owe him: If you owe taxes, pay taxes; if revenue, then revenue; if respect, then respect; if honor, then honor.

If Jesus wanted us to know that we should resist taxes to governments that would apply the tax money in sinful ways, he was given every opportunity to make this clear when he was asked: “Is it right to pay taxes to Caesar or not?” Instead, he responded with “Give to Caesar what is Caesar’s, and to God what is God’s,” which successfully bewildered everybody at the time, and the meaning of which continues to defy consensus today.

The best that Christian tax resisters could come up with, Biblically, to justify their position was either a confidently asserted (if somewhat strained) reading of the “Give to Caesar” koan, or the story from Acts 5 in which the apostles defied the law and continued to preach the gospel according to God’s explicit command. Asked to explain themselves on that occasion,

Peter and the other apostles replied: “We must obey God rather than men!”

Most Christian tax resisters took the “Give to Caesar” passage and certainly the one in Romans to mean that God does indeed command us to pay taxes, even to unjust governments. But they interpreted the Acts “obey God rather than men” statement as providing an occasional override—essentially: “render unto Caesar and submit to the government, unless that would mean disobeying God.”

American Christian pacifist T.S. Grimké put it this way:

[If the ruler] require me to pay taxes, although one object of the taxes be the support of idolatry, or the waging of war, I comply, simply because he has a clear right to levy taxes, and the responsibility of applying them is with him, not with me…

If he commands what is unlawful, as a means for the attainment of even a lawful end, I refuse obedience. But if he commands what is lawful, intending when the command has been performed by me, to employ the fruit of my obedience in the accomplishment of unlawful purposes in which I have no hand, I obey, because he requires of me only what is rightful. I have nothing to do with his motive or his object.

I would illustrate this by the case of a debt. I am indebted to another. He demands payment. I am not at liberty to refuse, because I happen to know, or have reason to believe that he will employ the money, when paid, for unlawful or immoral purposes. This follows from the principle already stated. My duty is very clear, to pay the debt: the use of the money, when paid, is at once his right and responsibility…

[However, if the] magistrate, instead of a general tax law divides the taxes, and lays on the advocates of Peace the war tax. They cannot conscientiously pay it; because they are thus made the sole and direct instrument of carrying on the war, and without their compliance, it must be at a stand.

Is Paying a Tax Really Like Paying a Debt?

The comparison of taxes to debts has been an important metaphor in debates about the ethics of tax resistance.

If paying taxes to the government is good in and of itself (for instance, because God has so decreed it) then taxpaying can’t simply be judged according to its consequences. A tax payment, in this way of thinking, is not a donation or a subscription or a contribution that is made voluntarily with an aim to supporting whatever cause the funds are being raised for, but is a duty akin to paying a debt. You can’t ethically refuse to repay a loan because you think the person you owe money to will spend the money unwisely.

Here’s an example of how this metaphor was used to justify the nuanced position of one tax resister: Joshua Maule was a Quaker advocate of war tax resistance. When the government increased a general tax by a certain percentage in order to pay for war expenses (and they explicitly said this was the reason), Maule refused to pay this additional fraction of his taxes, and he insisted that this was the only position consistent with traditional Quaker teaching regarding war and war taxes.

Maule’s critics asked him why he continued to pay other taxes (for instance excise fees) or the remaining portion of his general tax—since surely some of those taxes would also go to pay for war. One critic compared Maule to someone trying to avoid getting drunk by finding out the percentage of alcohol in the booze, and then leaving that fraction of each of his drinks unfinished in the glass.

Maule responded by trying to draw a sharp line between ordinary civil taxes, which, like a debt, he must pay regardless of how some of it may be used, and explicit war taxes, which fall under a different rule:

I am not accountable for the acts of other men: if I owe a just debt, I must pay it; if the person receiving the money uses it for a bad purpose, the accountability is with him; but if he demand money of me avowedly to be used in any way to the plundering of my neighbor, destroying his property, or taking his life, then if I furnish money thus demanded I become an accomplice in the evil work and accountable for the sin.

Quaker Samuel Allinson put forward a forceful attack on the tax-as-debt analogy in 1780. First, he denied outright that God has commanded us to give Caesar anything that Caesar plans to put to a sinful purpose:

[I]f tribute is demanded for a use that is anti-christian, it seems right for every Christian to deny it, for Caesar can have no title to that which opposes the Lord’s command.

He then attacked the idea that taxation represents some sort of secularly-contracted debt, or part of an implicit “social contract.” Allinson argued that no Christian would agree to the terms of a contract that might require him to do the devil’s work:

Every valid contract is voluntarily entered into, and as it is the duty of every one previously to see that his engagement is innocent, so when his promise is purchased by a consideration given it would be dishonest and deceitful not to perform it, the other party having, as it were, deposited so much effects in his hands which he is to render back according to agreement, and when received the receiver has a right to apply it as he pleases without any account to the payer. But in the case of taxes he who gives has a right to call to such an account, and therefore seems himself liable for and privy to the application. Every man has or has not given his assent to the government he lives under, in the first, he has formally declared his allegiance thereto, in the latter, that allegiance is implied in consideration of his receiving the protection and benefit of it in the safety of his person and the security of his property, in both, it is no more than to be “true and faithful” which can never mean a compliance with every requisition, for we owe a superior allegiance to the King of Kings, and whenever the requisitions of man run counter thereto we “ought to obey God rather than men”… We have never entered into any contract, express or implied, for the payment of taxes for war, nor the performance of anything contrary to our religious duties…

Conclusion?

So have we made any progress here? We’ve reviewed the question of taxpayer complicity from several angles and gotten some historical perspective on how people have wrestled with it. I think I’ve at least demonstrated that of the two extreme positions—that paying taxes makes you a fully-guilty accomplice in whatever the government does, or that because paying taxes is a lawful demand it is therefore a decision without personal ethical import—neither can be accepted uncritically.

Notes and Citations

Note that Chiquita was not charged with conspiring with these Colombian terrorist groups—wasn’t charged as a co-conspirator or accessory in their crimes—but was charged with a distinct crime of providing funds to terrorist organizations. On the other hand, that crime may itself just be a legal shorthand that amounts to essentially the same thing.
“Criminal Taxpayers” Peace Magazine (quoting from The Nuclear Resister) November/December 1996, p. 14
“Principles of International Law recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, with commentaries” Yearbook of the International Law Commission, Vol. II (1950), pp. 374–78
“Reader Mail #43—Apologies are for Statists” FSK’s Guide to Reality
Gandhi, M.K. “The First of August” Non-violent Resistance (Satyagraha) (1961) p. 123 (Young India 28 July 1920)
“People v. Kaufmann” (Nov. 1907) Reports of Cases Determined in the Supreme Court of California, Vol. 152 (1908), p. 334—“an apt statement” of “the rules of law governing the criminal liability of each of several parties engaging in an unlawful conspiracy” that was “abundantly supported by authority.”
Dillon, John F. “U.S. v. Babcock” U.S. District Court, Eastern District of Missouri, 1876, case #14,487 in The Federal Cases (1995), book 24
Blashfield’s Instructions to Juries, Civil and Criminal Cases, 2nd. ed. (1916), Vol. II, p. 1785
Garrison’s was commenting on the policy of the American Anti-Slavery Society in response to critics who said that if it was immoral (as Garrison thought) to vote for politicians running for constitutional offices while the Constitution protected slavery, it must also be immoral to pay taxes to such a constitutionally-governed government. Found in William Lloyd Garrison, 1805–1879: the story of his life told by his children, Vol. III p. 106.
James, J.G. “The Ethics of Passive Resistance” International Journal of Ethics, Vol. XIV (October 1903) pp. 282, 287
Arendt, Hannah “Personal Responsibility Under Dictatorship” in Responsibility and Judgment (2003) p. 18
“International Convention for the Prevention of the Financing of Terrorism” United Nations (1999). On its face, this would seem to prohibit paying taxes to the United States government, but seeing as the government is a signatory to this agreement, and seeing as all of the signatories are governments, I’m sure there’s a loophole.
The World’s Crisis and Second Advent Messenger (Vol. 17, No. 24, 25 August 1863) as found in Brock, Peter Liberty and Conscience: A Documentary History of the Experiences of Conscientious Objectors in American through the Civil War (2002, pp. 185–86)
Romans 13:1–7, Acts 5:29.
See Wikipedia for an introduction to the difficulties people have had with the “Render Unto Caesar” passage, which is found in, for example, Matthew 22:15–22.
Grimke, T.S. “Note X” to his edition of Dymond, Jonathan An Inquiry Into the Accordancy of War with the Principles of Christianity (1834), p. 160
Hall, Nathan “From a Letter to Joshua Maule” (1863) American Quaker War Tax Resistance, 2nd. ed. (2011), pp. 386–87
Maule, Joshua “The Distinction Has No Real Difference” (1863) American Quaker War Tax Resistance, 2nd. ed. (2011), pp. 388–96
Allinson, Samuel “Against War and Taxes for Its Support” (1780) American Quaker War Tax Resistance, 2nd. ed. (2011), pp. 165–79