Doreen Hendrickson and the Form 1040 Paradox

Truth lies signsA jury in Michigan has at least temporarily setback the federal government’s effort to greatly expand its already terrifying power over us. Government lawyers failed to convince 12 jurors that Mrs. Hendrickson must either swear to the numbers the IRS provided on a form or go to prison. You can read more about the background of the case here.

Because the jury failed to reach a unanimous decision, there is no decision. The feds can go after Doreen on the same charges again in six months if they choose to. But there are risks for the government in doing so. The risk lies in exposing the Form 1040 Paradox to close examination.

The government’s problem is that a case like this will necessarily involve some discussion of the nature of tax returns as affidavits, and the long settled law concerning how affidavits must be made.

The government is loath to allow jurors to consider the law in any way. Federal judges routinely lie to jurors about the powers and responsibilities of juries. Federal judges do not tell juries about their right to dispense justice rather than simply follow the court’s orders concerning the law. The judge in this case was no different.

Additionally, in Doreen’s case the DOJ got the judge to instruct the jury that “the lawfulness of the order is no defense to the charge.” In other words, it doesn’t matter what the court ordered Doreen to do, legal or illegal, right or wrong, she must obey or suffer prison.  This highly questionable jury instruction is the court’s excuse for refusing to allow the jury to consider evidence of the lawfulness of the court’s order. Fortunately some discussion was unavoidable.

In order to claim the power to compel someone to sign a false affidavit, the DOJ runs the risk of exposing the jury to the great logical paradox of the income tax. This paradox, which in all other circumstances is not up for discussion by IRS or DOJ officials, is at the heart of our alleged requirement to sign and submit tax returns.

First, let’s do a quick review of legal arguments. Don’t worry, there won’t be a test on this.

The basic structure of a legal argument called a syllogism. Here is an example of a syllogism:

Major Premise:                 All men are mortal.

Minor Premise:                 Socrates is a man.

Conclusion:                        Socrates is mortal.

The following syllogism is one the IRS would rather hide from public scrutiny, but which they tried their best, with full cooperation from the judge, to keep from the jury in Doreen’s case:

Major Premise:        Affidavits must be voluntary to be valid.

Minor Premise:       Form 1040 is an affidavit.

Conclusion:    Completing a valid Form 1040 must be voluntary.

Everybody knows the government claims filing returns is mandatory.  I’m not going to wade into that debate, but I think it will be useful to examine our syllogism for error.

To do so we must look at the premises of our paradox and make sure they are correct.

Is our Major Premise correct? We can answer that question with a quick reference to a legal dictionary or encyclopedia.  Here’s one from Black’s Law Dictionary, probably the most widely used reference of its kind in American law:

“Affidavit.  A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.”[1] (Emphasis added by author in all references)

Here’s another from an online dictionary:

“Affidavit. A written statement of facts voluntarily made by an affiant under an oath or affirmation administered by a person authorized to do so by law.”

It goes on to add:

An affidavit is voluntarily made without any cross-examination of the affiant and, therefore, is not the same as a deposition.

The courts agree.

“Moreover, because an affidavit of relinquishment waives a constitutional right, it must be made voluntarily, knowingly, intelligently, and with full awareness of its legal consequences.” – in Monroe v. Alternatives in Motion, 2007.

The question of whether by signing a tax return the citizen is indeed waiving his 5th Amendment right against self-incrimination has been settled in hundreds of criminal tax evasion cases where returns were used as evidence against the defendants. Tax return information is testimony. And it has been used against defendants in criminal cases for generations.  Rights must be voluntarily waived. Apparently lots of people have volunteered to waive their rights by filing tax returns.

And the second premise?

The second premise claims a form 1040 is a species of affidavit. Looking at Black’s definition, a form 1040 certainly appears to qualify as a “written statement of facts… confirmed by oath.”  And originally signatures on returns were required to be notarized. But Uncle Sam wanted to make it easier to volunteer so I.R.C. § 6065 and 28 U.S.C. 1746 allow us to swear to the facts on a return without a notary’s seal.

So it looks like our premises are solid. And if so, by the rules of logic, our conclusion that filing tax returns is voluntary must also be true.

I’m not going to slog into that mud pit any deeper than I have already, but I’m sure the reader can see why federal attorneys might like to avoid having a jury consider that form 1040 is an affidavit and only voluntary affidavits are valid.  It’s a consideration that may keep the DOJ from continuing its attack on Doreen Hendrickson.

[1] Black’s Law Dictionary, West Publishing Co., St. Paul, Minn. , 6th ed. 1990, pg. 58. Citing  State v. Knight, 219 Kan. 863, 549 P.2ds 1397, 1401.


Lysander Venible is the author of "On Your Own in Tax Court," a book about how to save your shirt in U.S. tax court. He has been engaged with the Service for over 10 years both administratively and in tax court.

If you have questions, topics or a situation you'd like to discuss, comment below or click the "About/Contact" tab above.

Lysander is not an attorney and it is not his intent to offer legal advice.

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