Thinking back to law school, I remember my constitutional law professor advising the aspiring lawyers to never take a position on an issue if that position does not pass the red face test. She explained that a position fails the red face test if you are embarrassed to state the position openly. Tax protesters should know that they will have to state their positions openly and they should be aware of the red face test (for the lay readers, tax protesters are those individuals who make various Constitutional and Biblical arguments as to why they should not have to pay any federal taxes). This type of emotional issue is never mentioned by the literature or by the individuals that promote tax protester ideologies. Tax protesters and potential tax protesters should be made aware of these emotional issues. When tax protesters solicit my counsel, I alert them to these emotional issues by telling the sad tale of my first encounter with a tax protester. I relate this story here with the intent of explaning what it is really like to be a tax protester. With that said, here is the sad tale:

I had arrived at the courthouse early, so I found my way to the courtroom where the U.S. Tax Court was going to convene and I took a seat in the middle pew. The only other persons there were the bailiffs and the IRS attorney and agent. A few spectators shuffled into the courtroom and took seats around me. The opposing parties entered the courtroom. The tax protester promoter led the way (he looked strikingly similar to a haggard Drew Carey – not to insult the real Drew Carey). The tax protester entered second. The tax protester’s support group entered last. At this point I did not know that this was a tax protester case.

The promoter made his way to the counsel table and started to unpack his briefcase. The promoter took the only item in his briefcase out and placed it on the table. It was a thick tome, which I assumed was an abridged version of the Internal Revenue Code (IRC). At the time, I remember thinking, “Wow, I have never seen anyone try to argue an entire case based solely on the IRC.” I began to wonder how anyone could put on a case without bringing any notes, documentation, or other evidence to support their position. As I settled in to see what this case was about, I noticed that the book that the promoter had set on the table was not the IRC. It was a copy of the Bible.

My attention then turned to the conversations between the members of the tax protester’s support group. One conversation centered on “government criminals” and something about hell. A second conversation involved one protester trying to sell the other a hush-hush mortgage “investment” that would elude prying eyes. As these two protesters discussed the mechanics of the deal, the salesman concluded that all the “investor” had to do was to write the salesman a personal check right then and the salesman would get back to the “investor” within a few weeks. He promised that there would be no paper trail and that, without incurring a tax liability, the “investment” would double in value in some specified time period. The transaction was obviously a scam and the look on the “investor’s” face revealed that he thought it was a scam too – but the “investor” still seemed interested in the deal. It sounded like they agreed to discuss the deal further after the hearing, but their conversation was drowned out by the court administrator’s voice.

The court administrator had came into the courtroom to tell the promoter that he was not allowed to sit at the counsel table or make arguments to the court because he was not an attorney. The promoter argued with the court administrator for several minutes. When the administrator explained that disbarred attorneys are not allowed to represent clients before the court, the promoter nervously glanced to his fan base in the pews to make sure that they did not hear the administrator’s comments. After that, the promoter quickly found his way to the pews. He sat right in front of me.

The promoter turned in my direction and instructed the young woman to the left of me to be sure to transcribe every word that transpired during the hearing. The young woman carried a 3” by 5” pad of paper and a pencil with a pink plume on the end. She wrote the words “Take Notes” on the pad of paper – the size of her writing was so large that those two words filled the first sheet of paper. Just when I was going to point out that there was already a court reporter in the courtroom and that she could buy an exact transcript for a few dollars, the judge entered the chamber.

As the court was going through introductions and calling the case, I turned my attention to the tax protester. She was a middle-aged woman. Other than not dressing up for court, she appeared to be normal. She would not stand out in a crowd.

My thoughts were interrupted when the IRS attorney started speaking. She indicated that the hearing was called to enforce a subpoena. Basically the IRS wanted the tax protester to turn over some bank statements. The court asked the tax protester why she had not turned over the documents. The tax protester appeared to be nervous. She did not answer the judge’s question. She tried to make several arguments. Some of the arguments appeared to involve something about the court’s powers, illegality, the Bible, and the Constitution. The protester’s sentences were choppy. The Judge had to interject to try to get the tax protester on track. The tax protester kept stopping mid-sentence and starting with a different argument. It was as if her mind were going too fast for her mouth. It was very apparent that the tax protester did not believe in the arguments that she was trying to make. The arguments really were ridiculous and the judge let her know that they were ridiculous. The tax protester kept looking in the promoter’s direction. I saw a look of shame and disbelief on the tax protester’s face. I felt sorry for her. All the while, the promoter was frantically trying to hand the protester a scrap of paper on which he had scribbled a note. It couldn’t have been more than two or three words. He was leaning way over the partition that separated the court from the pews and he was waiving his arm wildly. It really looked like he was going to fall over the partition. The tax protester never took the note. All the while she looked at the promoter with a look that said, “look what have you gotten me into,” “you are a con man,” and “I hate you” all at once.

The end result was that the tax protester pulled the documents out of her purse, handed them to the judge, and the judge reviewed them and turned them over to the IRS agent. There were only about two or three pieces of paper. It looked like only one bank statement. The court adjourned. It was really anticlimactic.

When I looked around, I noticed that the promoter and the protester support group had disappeared. They had crept out of the courtroom during the hearing. The non-tax protester spectators took their time leaving the courtroom. They were laughing and making jokes about the tax protester and the promoter. The tax protester was watching the crowd exit the courtroom and she was listening to their jokes. Eventually the tax protester and I were the only people remaining in the courtroom. The tax protester noticed that her counsel and her support group had abandoned her. She started crying. She was looking in my direction for some sign of reassurance. I did feel sorry and embarrased for her, but there was really nothing I could have done to make her feel any better. I remember thinking that she was lucky not to have been held in contempt and taken into custody. That was the only positive thing that I could think of at the moment. Realizing that she would not want to hear that point at the moment, I walked out of the courtroom.

Ever since that encounter I have wondered how the desire to not pay any taxes could lead this woman, a who appeared to be outwardly normal, to think that it was acceptable to come into court and make such ridiculous arguments -- especially when she obviously didn't really beleive in them. The woman did not appear to have any mental health issues, but I find it difficult to believe that a sane individual would take such actions. If she was sane, I wonder if her will was somehow overpowered or she was manipulated or misled by the promoter of the tax protester ideology. I often wonder if these types of promoters have the same skill set that cult leaders are purported to have.

The worst part of whole the experience is that the tax protester had apparently earned so little taxable income that she would have only had to pay a small tax liability – much less than the amount that she probably paid the promoter. Based on the testimony it sounded as if she could not afford to pay the tax and the promoter’s fee. That was the first time that I encountered a tax protester and that is the only time that I have heard anyone try to make arguments that clearly fail the red face test. It was a sad tale indeed.