*NOT LEGAL ADVICE! Always have your taxes, and your personal and financial affairs handled by certified / licensed professionals.
Only Code Breaker; The § 83 Equation by David R. Myrland has all of this.
Authorities relative to the interpretation of Tax Code § 83(a):
1.
Tax Code § 83 applies to any and all compensation for personal services
actually performed:
Cohn v. C.I.R., 73 USTC 443, 446 (1979): "Petitioners rest their entire case on the proposition that Elovich and Cohn and/or Mega were "independent contractors" and not employees of the Integrated and that, therefore, section 83 does not apply to the acquisition of the shares from Integrated. They rely on the legislative history surrounding the statute to support their proposition that section 83 was intended to apply only to restricted stock transferred to employees. Respondent contends that the words "any person" in section 83(a) encompass independent contractors as well as employees. We agree with Respondent. . . . We reject petitioner's argument. While restricted stock plans involving employers and employees may have been the primary impetus behind the enactment of section 83, the language of the section covers the transfer of any property transferred in connection with the performance of services "to any person other than the person for whom the services are performed." (Emphasis added.) The legislative history makes clear that Congress was aware that the statute's coverage extended beyond restricted stock plans for employees. H.Rept. 91-413 (Part 1) (1969), 1969-3 C.B. 200, 255; S.Rept. 91-552 (1969), 1969-3 C.B. 423, 501. The regulations state that that section 83 applies to employees and independent contractors (sec. 1.83-1(a), Income Tax Regs.). There is no question but that, under the foregoing circumstances, these regulations are not "unreasonably and plainly inconsistent with the revenue statutes." Consequently, they are sustained. (cites omitted)"
Pledger v. C.I.R., 641 F.2d 287, 293 (CA5 1981): "The taxing scheme imposed by Congress more accurately reflects what taxpayer received as compensation than a scheme that taxes the taxpayer on merely a portion of the compensation."
Alves v. C.I.R., 734 F.2d 478, 481 (CA9 1984): "The plain language of section 83(a) belies Alve's argument. Section 83(a) applies to all property transferred in connection with the performance of services. No reference is made to the term "compensation." Nor is there any statutory requirement that property have a fair market value in excess of the amount paid at the time of transfer. Indeed, if Congress had intended section 83(a) to apply solely to restricted stock used to compensate its employees, it could have used much narrower language. Indeed, Congress made section 83(a) applicable to all restricted "property," not just stock; to property transferred to "any person," not just to employees; and to property transferred "in connection with . . . services," not just compensation for employment. See Cohn v. Commissioner, 73 USTC 443, 446-47 (1979)."
Robinson v. C.I.R., 82 USTC 444, 459 (1984); "The legislative history of section 83 does not require the conclusion that the statute should be applied to tax-avoidance techniques only. To the contrary, the House and Senate reports specifically delineate transactions and transfers to which section 83 was not to apply and do not exclude from its purview contractual provisions that were not tax motivated."
MacNaughton v. C.I.R., 888 F.2d 418, 421 (CA6 1989): "The Alves court stated that the plain language of section 83 belied this argument because the "statute applied to all property transferred in connection with the performance of services" and because no reference is made to the term "compensation." Id. The court further concluded in Alves that "if Congress had intended section 83(a) to apply solely to restricted stock used to compensate employees, it could have used much narrower language." Id. at 481-82. Upon consideration, we agree with the interpretation advanced by the Alves court and, therefore, join the Ninth Circuit in holding that section 83 is not limited to stock transfers which are compensatory in nature."
*Concurring with Cohn, Alves, see Centel Communications Co. v. CIR, 920 F.2d 1335, 1342 (CA7 1990).
Klingler Electric Co. v. C.I.R., 776 F.Supp. 1158, 1164 at [1] (S.D.Miss. 1991): "Section 83(a) applies to all property transferred in connection with the performance of services."
Montelepre Systemed, Inc. v. C.I.R., 956 F.2d 496, 498 at [1] (CA5 1992): "Section 83(a) explains how property received in exchange for services is taxed."
Gudmundsson v. US, 634 F.3d 212 (CA2 2011): "At the heart of this case is I.R.C. § 83, which governs the taxation of property transferred in connection with the performance of services."
IRS Officer, Sue Besson, 20 yrs. on the job who performed over 500 investigations, on the stand in the tax evasion trial of Raymond Gebauer, August of 2007: "I am unfamiliar with § 83."
Because § 83 is universally applicable to any and all compensation, I have no choice but to comply with it when I calculate my income tax liability. More importantly, the IRS has the same obligation.
******************************
2.
Labor is property, and its value is determined through the terms of an arm's
length transaction:
Labor is the most sacred property and inviolable right of man. (See Butcher's Union Co. v. Crescent City Co., 111 U.S. 746; Slaughterhouse case, 16 Wall. 36-130)).
"The fair market value is the price at which the property would change hands between a wiling buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of the relevant facts." Treas.Reg. §20.2031-1(b). The willing buyer-willing seller test of fair market value is nearly as old as the federal income, estate, and gift taxes themselves, and is not challenged here."
" . . .The 'willing buyer' is the fully informed person who agrees to buy . . . at the redemption price. . . .It is a market made up of informed buyers and informed sellers, all dealing at arm's length.""Fair market value is that "price which would probably agreed upon by a seller willing, but under no compulsion, to sell, and a buyer willing, but under no compulsion, to buy, where both have reasonable knowledge of the facts." (See Pledger v. Commissioner of Internal Revenue, 641 F.2d 287, 295 (CA5 1981), quoting Newberry, 39 BTA 1123 (1939).
Black's Law Dictionary, 6th Edition, "Arm's length transaction." Said of a transaction negotiated between unrelated parties, each acting in his or her own self interest; the basis for a fair market value determination. A transaction in good faith in the ordinary course of business by parties with independent interests... The standard under which unrelated parties, each acting in his or her own best interest, would carry out a particular transaction.
From my employer, from my customer, from my client, who are unrelated parties who pay me in arm's length transactions for my personal services, I receive fees, commissions, tips, salaries, vacation pay, sick pay, medical benefits, dental benefits, company car, a pension, all things paid in connection with the performance of my services under the contract governing my obligations to the one purchasing my services.
******************************
3.
When the law says "any" or "any property" it's construed
as all inclusive:
As used in statute and regulation, the terms "any" or "any property" are to be construed as all inclusive until express statutory exceptions can be cited to support a contention that such terms are not all inclusive. (See U.S. v. Monsanto, 491 U.S. 600, 607-611 and (syllabus) (1989); United States v. Alvarez-Sanchez, 511 U.S. 350, 357 (1994); U.S. v. Gonzales, 520 U.S. 1, 4-6 (1997); Department of Housing and Urban Renewal v. Rucker, 535 U.S. 125, 130-31 (2002) citing Gonzalez and Monsanto).
1989 - Monsanto: Heroin manufacturer Monsanto argues that he should be allowed to keep enough money for attorney's fees, but the DOJ argues successfully that "any property" is all inclusive and therefore means the U.S. can seize any and all property unless Monsanto can point to a specific exclusion of attorney's fees under the law. DOJ can seize everything owned by defendant.
1994 - Alvarez: U.S. argues successfully that, because statute expressly provides for an exception to "any," that it is not all inclusive, that a "delay" should not preclude a criminal defendant's confession or statement to state police from being used as evidence in federal case commenced thereafter. DOJ can use confession sought to be suppressed by criminal defendant.
1997 - Gonzales: U.S. argues successfully that "any" in sentencing laws is all inclusive and therefore prevents the defendants from serving federal time concurrently with other sentences, argues for more jail time and gets it. More jail time for convict.
2002 - Rucker (citing Monsanto and Gonzales): U.S. argues successfully that "innocent owner" defense unavailable to co-tenant of low income housing who, although innocent, was subject to the statute's eviction of an all inclusive "any tenant" of a leased unit where prohibited activity had taken place. U.S. can evict the innocent tenant of low income housing unit which is scene of prohibited behavior.
And from Monsanto, Id.:
"Section 853's language is plain and unambiguous. Congress could not have chosen stronger words to express its intent that forfeiture be mandatory than § 853(a)'s language that upon conviction a person "shall forfeit . . . any property" and that the sentencing court "shall order" a forfeiture. Likewise, the statute provides a broad definition of property which does not even hint at the idea that assets used for attorney's fees are not included. Every Court of Appeals that has finally passed on this argument has agreed with this view. Neither the Act's legislative history nor legislators' post-enactment statements support respondent's argument that an exception should be created because the statute does not expressly include property to be used for attorney's fees, or because Congress simply did not consider the prospect that forfeiture [491 U.S. 601] would reach such property. . . . Moreover, respondent's admonition that courts should construe statutes to avoid decision as to their constitutionality is not license for the judiciary to rewrite statutory language. Pp. 606-611."
"In determining the scope of a statute, we look first to its language." United States v. Turkette, 452 U.S. 576, 580 (1981). In the case before us, the language of § 853 is plain and unambiguous: all assets falling within its scope are to be forfeited upon conviction, with no exception existing for the assets used to pay attorney's fees -- or anything else, for that matter.
As observed above, § 853(a) provides that a person convicted of the offenses charged in respondent's indictment "shall forfeit . . . any property" that was derived from the commission of these offenses. After setting out this rule, § 853(a) repeats later in its text that upon conviction a sentencing court "shall order" forfeiture of all property described in § 853(a). Congress could not have chosen stronger words to express its intent that forfeiture be mandatory in cases where the statute applied, or broader words to define the scope of what was to be forfeited. Likewise, the statute provides a broad definition of "property" when describing what types of assets are within the section's scope: "real property . . . tangible and intangible personal property, including rights, privileges, interests, claims, and securities." 21 U.S.C. § 853(b) (1982 ed., Supp.V). Nothing in this all-inclusive listing even hints at the idea that assets to be used to pay an attorney are not "property" within the statute's meaning.
Nor are we alone in concluding that the statute is unambiguous in failing to exclude assets that could be used to pay an attorney from its definition of forfeitable property. This argument, advanced by respondent here, see Brief for Respondent 12-19, has been unanimously rejected by every Court of Appeals that has finally passed on it, as it was by the Second Circuit panel below, see 836 F.2d at 78-80; id. at 85-86 (Oakes, J., dissenting); even the judges who concurred on statutory grounds in the en banc decision did not accept this position, see 852 F.2d at 1405-1410 (Winter, J., concurring). We note also that the Brief for American Bar Association as Amicus Curiae 6, frankly admits that the statute "on [its] face, broadly cover[s] all property derived from alleged criminal activity and contain[s] no specific exemption for property used to pay bona fide attorneys' fees."
Respondent urges us, nonetheless, to interpret the statute to exclude such property for several reasons. Principally, respondent contends that we should create such an exemption because the statute does not expressly include property to be used for attorneys' fees . . . In support, respondent observes that the legislative history is "silent" on this question, and that the House and Senate debates fail to discuss this prospect. But this proves nothing[.] The fact that the forfeiture provision reaches assets that could be used to pay attorney's fees, even though it contains no express provisions to this effect, "'does not demonstrate ambiguity'" in the statute: "'It demonstrates breadth.'" Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 499 (1985) (quoting Haroco, Inc. v. American Nat. Bank & Trust Co. of Chicago, 747 F.2d 384, 398 (CA7 1984)). The statutory provision at issue here is broad and unambiguous, and Congress' failure to supplement § 853(a)'s comprehensive phrase -- "any property" -- with an exclamatory "and we even mean assets to be used to pay an attorney" does not lessen the force of the statute's plain language.""As we have noted before, such post-enactment views "form a hazardous basis for inferring the intent" behind a statute, United States v. Price, 361 U.S. 304, 313 (1960); instead, Congress' intent is "best determined by [looking to] the statutory language that it chooses," Sedima, S.P.R.L., supra, at 495, n.13. . . . Finally, respondent urges us, see Brief for Respondent 2029, to invoke a variety of general canons of statutory construction, as well as several prudential doctrines of this Court, to create the statutory exemption he advances; among these doctrines is our admonition that courts should construe statutes to avoid decision as to their constitutionality. See, e.g., Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575 (1988); NLRB. v. Catholic Bishop of Chicago, 440 U.S. 490, 500 (1979). We respect these canons, and they are quite often useful in close cases, or when statutory language is ambiguous. But we have observed before that such "interpretative canon[s are] not a license for the judiciary to rewrite language enacted by the legislature." United States v. Albertini, 472 U.S. 675, 680 (1985). Here, the language is clear and the statute comprehensive: § 853 does not exempt assets to be used for attorney's fees from its forfeiture provisions.
The Supreme Court's rulings are good enough for me when they're based on all relevant evidence. Even more important for the purposes of § 83 is the fact that the government won these four cases arguing that the term "any" means everything unless the law expressly provides otherwise.
******************************
4.
What is your interpretation of Tax Code § 83(a)?
26 USC § 83 Property transferred in connection with the performance of services.
(a) General rule.- If, in connection with the performance of services, property is transferred to any person other than the person for whom such services are performed, the excess of -
(1) the fair market value of such property (determined without regard to any restriction other than a restriction which by its terms will never lapse) at the first time the rights of the person having the beneficial interest in such property are transferable or are not subject to a substantial risk of forfeiture, whichever occurs earlier, over -
(2) the amount (if any) paid for such property, shall be included in the gross income of the person who performed such services in the first taxable year in which the rights of the person having the beneficial interest in such property are transferable or are not subject to a substantial risk of forfeiture, whichever is applicable. The preceding sentence shall not apply if such person sells or otherwise disposes of such property in an arm's length transaction before his rights in such property become transferable or not subject to a substantial risk of forfeiture.§ 83 Property Transferred in Connection with the Performance of Services. If, in connection with the performance of services property is transferred, . . . the excess of . . . the fair market value of such property . . . over . . . the amount (if any) paid for such property, . . . shall be included in the gross income of the person who performed such services . . .
26 CFR 1.83-3(g) Amount paid. For purposes of section 83 and the regulations thereunder, the term "amount paid" refers to the value of any money or property paid for the transfer of property to which § 83 applies.
******************************
5.
Conclusion:
It doesn't get any
easier than this - one statute, one regulation, and all the case law in the
world in support. You won't find a single accountant or tax attorney who knows
anything about § 83 and its relevance and importance. The only reason for
they're ignorance has to be that they never bothered to read the Tax Code, for
if they had they surely would have come across § 83. Can anyone rightfully
claim to be a tax expert when they haven't even read the Tax Code? No. What
business does anyone have suggesting that the Tax Code should be rewritten or
simplified if they aren't even aware of the statute that "explains how"
to tax compensation? What if, like the PPACA, the Tax Code is complex for the
purposes of hiding the true nature of the law?
I can't get the
government to place onto the record its own interpretation of § 83(a),
no matter how antagonistic and confrontational I can get away with being in
pleadings in federal tax cases. If you have an interpretation of § 83(a)
that differs from my conclusion that it treats all property, including labor
or personal services, as a cost, you're a better tax lawyer than all such attorneys
at the IRS and the DOJ, and all IRS employees who are "unfamiliar with
§ 83."
What are the ramifications
if the federal government is indeed depriving you and all Americans of the provisions
of § 83 to steal the amounts it calls an income tax on the value of your
personal services? Doesn't this in fact make a felon of every official, agent,
and employee of the federal government who's involved in the enforcement of
the Tax Code? Isn't it true that the law from coast to coast allows any person
with knowledge or reasonable suspicion that a felony has been committed to arrest
the felon and take them to the authorities? Yes. Would you like a compilation
of citizen's arrest cases in federal courts from across America? Would you like
a list of felony statutes the federal government violates through this misenforcement
of the Tax Code? How did § 83(a) operate in the conclusion that you have
gross income to report and to pay an income tax on when all you received was
the fair market value of your personal services? Is what the IRS demands actually
a "tax," or is it extortion and racketeering?
*End authorities.
- TakeFromCaesar.US -
Property of:
American Liberties, LLC - *All rights reserved, no unauthorized reproduction
allowed.
******************************
*Close this window when finished viewing this page.