Tax System: Too Complex To Be Constitutional? | January 19, 2011
By Jack Hough

Douglas Shulman says he uses a hired tax preparer because the U.S. tax code is so complex. That's a bad sign. He's the I.R.S. commissioner.

The tax system has clearly gotten too complicated. The code itself holds about 3.8 million words, nearly five times as many as the King James Bible. There's also a much larger body of regulations, which carry the weight of law, written by the Internal Revenue Service, along with court precedents going back at least a century. Add to that the IRS's published opinions on its regulations.

Even if someone could read all of it, the rules would be obsolete by the time he finished. There have been more than 4,400 changes to the tax code over the past decade, or more than one a day.

Can the tax system become too complicated to be constitutional? Consider the following two sentences from different sources:

1. "[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law."

2. For purposes of paragraph (3), an organization described in paragraph (2) shall be deemed to include an organization described in section 501(c)(4), (5), or (6) which would be described in paragraph (2) if it were an organization described in section 501(c)(3).

The first sentence comes from a 1926 Supreme Court decision that helped establish the right of citizens to known what laws mean. The second comes from the tax code.

To be clear, I don't recommend that anyone wage a tax protest by not paying. Many have tried and the tax code has a special woodshed to take them to: Section 6702 on frivolous tax submissions. Penalties jumped from $500 per offense to $5,000 in 2006. The I.R.S. publishes a long list of arguments it warns have already been deemed frivolous.

Taxes are voluntary, you say? Good luck. United States v. Tedder in 1986 made clear that while the general method of collection is voluntary, it can be made involuntary in a hurry if you don't volunteer your bit.

Compliance to tax law, you claim, is a form of slavery and thus violates the 13th Amendment? I admire your creativity. But the U.S. Court of Appeals didn't admire it as much in its 1956 ruling on Porth v. Brodrick.

This is not a nation of law or finance scholars. Department of Education studies have shown that nearly two-thirds of respondents struggle to make sense of a bus schedule, and more than half can't add two items on a lunch menu and calculate a 10% tip. If the average person can't fully read or understand the rules, the rules no longer seem fair. Why don't the courts force tax simplification?

"You'd never get that argument in front of a judge," says Daniel Pilla, a tax litigation consultant and the author of 11 books, including "The IRS Problem Solver."

Procedurally, Pilla says, the effort would go something like this (and he strongly recommends against anyone going down this path). A citizen would pay their tax as usual and then file for a refund. In the claim he'd state his case that the complexity of the code is a violation of due process of law as protected by the 5th Amendment.

At that point, the IRS would almost surely fine the filer $5,000 for trying, says Pilla. (Its list of frivolous claims specifically refutes the argument that taxes constitute a taking of property without due process, although it says nothing about the complexity argument. The National Taxpayer Advocate's office would only forward the frivolous claims literature.) After the IRS turns down the claim, the filer could sue in federal court, at which point, says Pilla, the case would surely get "bounced." That is, the U.S. government would file a motion for summary judgment saying the issue is settled by existing case law.

"Not a day goes by that I'm not stuck in some book trying to figure out what the hell the tax code means," says Pilla. "Judges admit it's too complicated in their rulings when they refer to it with words like 'Byzantine.' Everyone knows it's unfair, but you'd never be allowed to argue that in court."