Vital Signs

The Ultimate Tax Protest

In Suzanne M. Bartley et al v. United States, a class-action suit filed on April 17, 1995, in federal district court in Milwaukee, my wife, on behalf of herself and all others who paid federal taxes for the years 1991-93, has sued for a refund of approximately 70 percent of the revenue collected during those years. For fiscal year 1993 alone, the total amount of the refund approximates $808 billion. If the pattern of overcollection for fiscal year 1993 holds true for fiscal year 1991-1992, the grand total of the refund would be a staggering $2.4 trillion.

Unlike the usual "tax protest" cases, the general basis for this suit is that the government, with its various tax statutes and regulations, has far exceeded its lawful taxing authority under Article One, Section 8 of the Constitution. That provision names almost all of the government's lawful spending powers and strictly limits it to raising taxes to carry out the enumerated functions and those alone. The government has no general power of taxation.

The Constitution's strict limitation on federal taxing power is made clear in the Federalist papers by both James Madison and Alexander Hamilton. Madison, in Federalist 41, said:

It has been urged and echoed that the [taxing power] amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense and...

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