FIFTH AMENDMENT: WHAT YOU DON'T KNOW CAN HURT YOU
and SPEAKING OF OPINION LETTERS

by Otto Skinner <http://www.ottoskinner.com/>


FIFTH AMENDMENT

* How is it that so many people have been led to believe that an
individual automatically waives his Fifth Amendment rights when
he files a 1040 form?
 
* How is it that so many people have been led to believe that the
Fifth Amendment provides a "taxpayer" with an excuse for not filing
a "required" return?

* How is it that so many people have been led to believe that the
Supreme Court ruled accordingly, when this is not the case at all?

Let's start with some of the quotes used by various authors of books
as well as various authors of opinion letters. Sometimes the authors
will cite Garner v. United States, 424 U.S. 648 (1975), as follows:

"The information revealed in the preparation and filing of an income tax
return is, for purposes of Fifth Amendment analysis, the testimony of a
witness."
 
Other times, they will provide more of the citation from Garner v. United
States as follows:
 
"The information revealed in the preparation and filing of an income tax
return is, for purposes of Fifth Amendment analysis, the testimony of a
'witness' as that term is used herein."
 
What is it that various promoters, authors of books and authors of opinion
letters fail to tell you? They fail to tell you just how "that term is used
herein". In other words, how the term "witness" is used within the case of
Garner v. United States. And, many of the followers fail to actually study
the case to find out for themselves.
 
Note: For years, I have been urging people to actually study each case upon
which they intend to rely. Often times, my admonitions have fallen on deaf
ears. If there was ever a perfect example to show people why they should
actually study the cases before they rely on them, the Garner case is that
example.
 
At page 652 of the Garner case, it states:
 
"The government compels the filing of a return much as it compels, for
example, the appearance of a 'witness' before a grand jury."
 
That is how the term "witness" is used in the Garner case. If an individual
is brought before a grand jury, he is compelled to testify. However, if any
of his answers might tend to incriminate him, he can claim his Fifth
Amendment right on a question by question basis. But he cannot take a
blanket claim to the Fifth Amendment and refuse to testify at all.
 
If you study the Garner case, you will find that the Court makes it quite
clear that the Fifth Amendment does not provide a law-abiding "taxpayer"
(regarding income tax returns) with any legally valid excuse for failing to
make any tax return at all, contrary to what many promoters and authors
claim. At page 650, the Garner Court cited with approval from United States
v. Sullivan, 274 U.S. 259 (1927), as follows:
 
"If the form of return provided called for answers that the defendant was
privileged from making he could have raised the objection in the return, but
could not on that account refuse to make any return at all."
 
At page 661, the Garner Court states:
 
"The great majority of persons who file income tax returns do not
incriminate themselves by disclosing their occupation. The requirement that
such returns be completed and filed simply does not involve the compulsion
to incriminate considered in Mackey."
 
Note: Mackey is a case relied upon by Garner in his arguments to the Court.
 
By failing to explain just how the term "witness" is used in the Garner
case, various promoters and authors have led people to believe that the
Garner case stands for the proposition that the Fifth Amendment provides a
"taxpayer" with an excuse for not filing a "required" return. As you can
see, the Garner case does not stand for such a proposition.
 
There is another citation that is used by some promoters as well as some
authors, including some authors of opinion letters, that always gets under
my skin. They cite the Fourth Circuit Court of Appeals in Sullivan v.
United States, 15 F.2d 809, by stating:
 
"There can be no question that one who files a return under oath is a
witness within the meaning of the Amendment."
 
What they fail to tell the readers is that the judgment of the Fourth
Circuit in this case was reversed by the United States Supreme Court in
United States v. Sullivan, 274 U.S. 259 (1927). In fact, I found in some
cases where the authors cited the Fourth Circuit's statement, but gave the
Supreme Court's number, as if the Fourth Circuit's citation was from the
United States Supreme Court in the Sullivan case. Another fact is that
there is no place in the Supreme Court's opinion in the Sullivan case that
even makes such a statement.
 
Note: Carefully notice the difference between the Fourth Circuit's citation
in the Sullivan case and the United States Supreme Court's citations in the
Sullivan case and the Garner case. The reason the Fourth Circuit's judgment
was reversed by the Supreme Court is essentially because the Fourth Circuit
determined that since part of Sullivan's income had been earned in the
commission of a crime (selling booze during the prohibition era), he would
have a Fifth Amendment excuse for not filing any income tax return at all.
The United States Supreme Court disagreed and said that, "the protection of
the Fifth Amendment was pressed too far." The Supreme Court said Sullivan
could have raised his Fifth Amendment objections on the return.
 
It is beyond the scope of this article to say how a criminal who is involved
in illegal activities should use the Fifth Amendment. The purpose of this
article is to show that the United States Supreme Court has clearly ruled
that the Fifth Amendment does not give a "taxpayer" an excuse for failing to
file a "required" return, contrary to what many people have been led to
believe. Perhaps the best way to understand this, is to compare the
different fact situations in the Neff case and in the Argomaniz case
referenced in my Banister article. Studying these two cases (along with the
Garner and Sullivan cases) can help you gain a better understanding of the
Fifth Amendment issue in two areas. First, the Fifth Amendment can provide
"taxpayer" protection from providing the government the evidence it needs
in order to be able to prove that a return was required from the "taxpayer"
and subsequently prosecute him for having failed to make the "required"
return. Second, if the government already has the evidence it needs to
prove that the "taxpayer" was required to make a return, the Fifth Amendment
will not provide the "taxpayer" a legally valid excuse for having failed to
do so. For more detailed discussions on this, see "The Biggest 'Tax
Loophole' of All" and also my first article on Banister, which is now
available on my web site at <www.ottoskinner.com>.

If you were to try to summarize the Fifth Amendment issue in one sentence, I
think you might do so by saying that essentially, an individual has a valid
Fifth Amendment claim only if by providing the answer to a particular
question he would tend to reveal some act or omission on his part that is a
violation of a criminal law, and which could lead to his being prosecuted
for that crime.
 
When a defendant enters documents which he claims he relied upon to form his
good-faith belief, the judges and prosecutors are quite talented in
discrediting the material. If the defendant enters an opinion letter which
references the Garner and Sullivan cases, on cross examination, the
prosecutor is free to have the defendant actually read from these cases.
This is a heck of a time for the defendant to get caught with egg on his
face. Showing what the cases really say, as opposed to what the opinion
letter claims, will seriously discredit the defendant's good-faith belief in
the eyes of the jury. Also, the judge is free to tell the jury that the
opinion letter does not reflect a valid legal position. This also
discredits the defendants good-faith belief in the eyes of the jury. The
more of this that goes on, the harder and harder it is for the defendant to
convince a jury that he really believes what he claims.
 
The more accurate the material, upon which the defendant relies, the more
difficult it is for the prosecutor to discredit the material. In the Gabe
Scott case in Alaska in 1992, the only books Gabe entered as evidence were
my first two books, "The Best Kept Secret" and "If You Are the Defendant".
Gabe walked off with not-guilty verdicts on all counts.
 

SPEAKING OF OPINION LETTERS

While thumbing through the opinion letters preparing for this article, I was
reminded of the fact that much of what is in various opinion letters seems
to me to be not much more than "copy and paste" material from various books
written by other people. It seems to me that much of the material that is
in various opinion letters has been copied from Irwin Schiff's books. Some
of it seems to be from other books. In a couple of cases, an author of a
book has actually misquoted the Supreme Court. Following this, the author
of one opinion letter has used the same misquotes, word for word. This
tells me that at least one author of an opinion letter did not actually do
his own research.
 
Before submitting any opinion letters, the individual should check out the
material for its accuracy.
 
Approximately 2000-3000 individuals are incarcerated each year for alleged
violations of the tax laws. It is so important for individuals to do the
best they can to make sure their arguments and beliefs are as legally
correct as possible. As many of you know, I am in strong disagreement with
much of the material that is being promoted within the non-filing community.
If you want to check out what I believe to be legally flawed arguments with
what you have been led to believe to be legally valid arguments, you can find
a list of 18 different issues listed on my web site at <www.ottoskinner.com>.

To find these 18 issues, click on Books. Next, click on "The Biggest 'Tax
Loophole' of All". Then, scroll down to the Table of Contents and on down
to Chapter 7 which is titled "Why Some People Go to Jail". If you are using
arguments that I believe to be legally flawed, it would behoove you to
carefully study these issues to make sure you don't end up on the witness
stand with egg on your face.
 
A while ago, I sent out e-mail articles regarding Bill Conklin and Ex-CID
Agent Joe Banister.
 
Note: The first article is now on my web site at <www.ottoskinner.com>.
 
I recently visited Joe Banister's web site. He is still offering his book
for sale. Apparently, he still wants to lead people to believe that Bill
Conklin won those cases as he claims in his book. Apparently, Joe Banister
is not interested in telling people that Bill Conklin did not actually win
those cases as his book claims.
 
Nevertheless, the individuals who put forth the effort to get copies of the
Conklin cases and read the cases for themselves, are now able to determine
for themselves that Conklin did not win the cases as claimed.
 
If someone within the "patriot" community knowingly promotes false
information, what do you think his motives would be? Would that person be
on the same side you are? These are questions that I think each individual
should ask himself, and then try to find the answers.
 
I ask the following questions. Were you led to believe that Bill Conklin
won the cases as both he and Banister have claimed? Have you actually read
these cases? If so, do you now believe that you were deceived by Banister
and/or Conklin regarding the Conklin cases?
 
Since there is now so much confusing and convoluted material floating around
the non-filing community, it is time for individuals to go back to the basic
principles of constitutional taxation and build their base of knowledge from
that point.
 
If you haven't already done so, you can print out and study all of my
special articles which are available on my web site at <www.ottoskinner.com>
You can also review the other material that is available.
 
Over the years, many people had not made their first contact with me or my
material until after they had been convicted. After learning what terribly
flawed arguments these people had relied upon for their defense, I now truly
believe that individuals should study all of my articles, all three of my
books and all 21 past issues of my newsletters, page by page, cover to
cover, and in the order they were written, long before they are faced with
criminal charges. Also, individuals need to study all of the applicable
court cases. There is a lot to learn, especially in case you are eventually
indicted.
 
Feel free to forward this message on to your friends who you think may
benefit from the information. If your friends want to be on my e-mail
distribution list, they can e-mail their request to otto@ottoskinner.com
 
Constitutionally yours,
 
Otto Skinner <http://www.ottoskinner.com/>