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Mr. Lanting, a member of South Holland Protestant Reformed Church, is a practicing attorney.

It was therefore error for the trial judge to instruct the jury to disregard evidence of Cheek’s understanding that . . . he was not a person required to file a return or to pay income taxes and that wages are not taxable income, as incredible as such misunderstandings of and beliefs about the law might be. 

Cheek v. U.S., Supreme Court (1991)

Tax Protesters

The tax protest movement is a loosely organized group of Americans who refuse to file income tax returns and pay income tax. Leaders of the movement conduct seminars and distribute tapes, books, and “legal opinions” contending that the U.S. tax laws are invalid and unconstitutional. In the last decade, many of the movement’s leaders themselves have been convicted of tax evasion, conspiracy, and fraud, chiefly due to their failure to report the prodigious income generated from their lucrative seminars and publications.

Some evangelical Christians, understandably distressed by the government’s perennial squandering and abuse of our tax dollars, have been persuaded by these charlatans to entertain the notion that federal income taxes are voluntary. Tragically enough, many of them are now languishing in federal penitentiaries and are insolvent following the government’s seizure of their bank accounts and real estate to satisfy their delinquent taxes, accumulated interest, and heavy penalties.

Cheek Convicted by Jury

A 47-year old veteran airline pilot, described by his lawyer as a “gullible victim of the tax protest movement,” recently had his tax evasion conviction overturned by the U.S. Supreme Court. John Cheek joined the tax protest movement in the late ’70s and refused to file tax returns or pay taxes on his pilot’s wages from 1980-1983. Moreover, by the mid-1980s, he was claiming over 60 exemptions on his W-4 forms.

Federal law provides that (any person who “willfully attempts in any manner to evade or defeat any tax” is guilty of a felony. Mr. Cheek was indicted and tried on three counts of willfully attempting to evade his income taxes.

Although Cheek admitted at trial that he did not file returns or pay any tax for the years in question, his defense was that his actions were not “willful” evasion. Cheek testified that he was indoctrinated at tax protest seminars and consequently sincerely (albeit mistakenly) believed that (1) his wages were not “income” and that he was not a “taxpayer” within the meaning of the tax laws; and (2) that the tax laws were unconstitutional. He therefore argued that he acted without the willfulness required for conviction.

The trial judge ruled that these unusual beliefs were not “objectively reasonable” and essentially instructed the jury to ignore these purported defenses. After lengthy deliberations, the jury convicted Cheek on all counts. He was sentenced to one year in jail and five years probation.

Good-faith Misunderstanding Negates Willfulness

Cheek appealed his conviction, arguing that it was error for the trial court to instruct the jury to disregard his admittedly mistaken beliefs about the tax laws just because they were not, in the judge’s opinion, “objectively reasonable.”

The U.S. Supreme Court, confronting its first tax protester case, partially agreed with Cheek and remanded his case for a new trial. The Court held that the trial judge erred in condemning as unreasonable Cheek’s mistaken belief that he was not a “taxpayer” and that his pilot’s wages were not “income.” The Court ruled that it should have been a jury determination whether or not these beliefs were good-faith misunderstandings of his duty to pay taxes. In other words, the Court held that it was the jury’s function, not the judge’s, to decide whether these beliefs negated the requisite criminal intent.

Unconstitutionality No Defense

However, in a second part of its opinion, the Court unequivocally stated that his belief in theunconstitutionality of the tax laws is not a defense. Should Cheek have thought the tax laws unconstitutional, said the Court, he should have paid the tax and then filed for a refund. In that legal way, he could have challenged the constitutionality of the tax laws. Thus the Court held that a defendant’s belief in the invalidity or unconstitutionality of the tax laws is irrelevant and inadmissible, since it smacks of meredisagreement with the laws—which is never a defense.

Accordingly, the Court remanded the case for a retrial, instruct instructing the judge to exclude Cheek’s unconstitutionality defense but to permit a jury to determine whether Cheek’s unusual notions regarding the definition of “income” and “taxpayer” were sincerely-held misunderstandings which may have negated his criminal intent. “Of course,” said the Court, “the more unreasonable the asserted beliefs or misunderstandings are, the more likely the jury will consider them to be nothing more than disagreement with known legal duties.”

A Caveat

Although the tax protest movement will undoubtedly consider the Cheek opinion to be a favorable ruling, a careful reading reveals otherwise, for several reasons.

First, the Cheek decision is very limited; it merely held that jury may consider the defense that a sincerely held misunderstanding of the tax laws negates criminal intent. That is not to say that any jury anywhere is going to “buy” such a defense. The Supreme Court itself ventured an opinion that such a defense appears to be “incredible.”

Secondly, the Court clearly held that a defendant’s belief in the invalidity or unconstitutionality of the tax laws is simplydisagreement, not a misunderstanding of the laws. Under the Cheek decision, disagreement with the tax laws or a belief they are unconstitutional is not a defense. By far the majority of tax protesters do not misunderstand the tax laws, they simply disagree with them. Such a purported defense is now clearly illegal and improper.

Thirdly, Cheek has not yet won his case; it was merely remanded for a new trial. Cheek now faces the expense, risk, and burden of a re-trial and perhaps even years of appeals or incarceration if he is convicted again.

Fourth, although a good-faith misunderstanding may be a defense to criminal charges, the Cheekdecision in no way shields one from civil liability for all back taxes plus interest and onerous penalties. (In Cheek’s case, he eventually paid over $150,000 in delinquent taxes, interest, and penalties in addition to $40,000 for attorney’s fees during his years of appeal.)

Finally, Cheek prevailed on appeal only because his attorney argued that Cheek had been victimized and indoctrinated by unscrupulous tax protest leaders who had duped him into believing the mistaken notion that his wages were not “income.” The Cheek decision can hardly be championed now by tax protest leaders.

Justice Blackmun, in his dissent, voiced some realistic warnings about the Cheek decision:

It is incomprehensible to me how, in this day . . . any taxpayer of competent mentality can assert as his defense to statutory willfulness the proposition that the wage he receives for his labor is not income, irrespective of the cult that says otherwise and advises the gullible to resist income tax collections. The Court’s opinion today, I fear, will encourage taxpayers to cling to frivolous views of the law in the hope of convincing a jury of their sincerity.

Accordingly, Reformed Christians must again be reminded that our Supreme Court still considers income tax payment a legal duty of all citizens and a willful evasion to be a felony in our land. And perhaps even more seriously, such unlawful activity consequently is also a violation of God’s Word which commands us to obey our magistrates and unconditionally to render “taxes to whom taxes are due” (Rom. 13:7I Pet. 2:13Matt. 22:21; Belgic Confession, Art. 36).