IS THIS THE END OF INCOME TAX?
New Zealand and Australia are facing what could escalate into their biggest constitutional crisis ever an income tax revolt by ordinary taxpayers with the potential to bring down the current system of government.
Already two thousand New Zealanders and a similar number of Australians are understood to have joined the movement, and organisers are expecting thousands more as news of their activities spreads. Ian Wishart continues his special investigation.
The New Zealand tax inspector shook his head and blinked at the American grinning at him across the table. "What do you mean its chickens!?," he sputtered. "What the hell have chickens got to do with it?"
The American just smiled. "Well, you show me in the New Zealand Income Tax Act where it says that chickens are not a legal form of income. And seeing as my client didnt earn any chickens last year, he doesnt owe you any tax."
Its an amusing diversion, and tax litigator Eddie Kahn (pron: Cain) has used it on a number of occasions with tax officials around the world. "Its the same in the US," he explains later, "because they dont legally define income there either. Whats really funny about it is the agent will look at you in a state of shock, saying no, its not chickens, and I say well how do you know its not chickens: you didnt define it. You see, when they say no its not, then they are obligated to show you what it actually is. And they cant, because it isnt defined."
Its an approach the NZ and Australian tax offices have never seen before: a drag-em-out-knock-em-down fist-fight with revenue authorities forcing them to prove that ordinary citizens are covered by existing tax legislation.
While it might sound Alice in Wonderland or Don Quixote in nature, the process appears to be working. For Kahn, his Australasian research began two years ago when he was asked by a group of New Zealanders to help them research the tax laws. The group ensconced themselves in the comfortable surrounds of the Auckland University Law Library, and it wasnt long before Kahn had his first taste of Kiwi bureaucracy.
"This librarian came over to us and asked if we were students. I said no and told her why we were there, and she said wed have to leave. Is this a publicly-funded research facility? I asked her, and she said it was. Well, were the public. These people with me pay your wages, and were not leaving."
Whats interesting is that while the American was standing up for them, many of the New Zealanders accompanying him had already begun packing up, automatically following the bureaucrats orders.
Naturally, the librarian went away to her supervisor who duly heard the same story, only this time Kahn added: "If you can show me your legal authority to exclude members of the public from this publicly-funded library, then well leave." The library couldnt, so the group spent several days there in the end.
What they were looking for was the "big bang" of income tax: when did it begin and what powers did the legislation give the government?
For the first few decades of European settlement in New Zealand, there was no income tax. Colonial governments survived, like other countries, on Customs duties on imports, as well as revenue from land sales to settlers.
But there was growing resentment among working classes to wealthy landowners coming in and buying up huge tracts of land for the equivalent of six dollars an acre, leaving smaller would-be farmers squabbling over the lower quality land that was left. What hurt the most was that while the land was cheap to buy, speculators had purchased such large quantities that they couldnt afford to make the land productive, so the land went up for sale but at prices that working people could not afford.
Sensing a political opportunity, former Governor George Grey stood for election as Premier in 1877 on a platform of introducing a land tax not because the colonial government needed more money, but because he believed the land tax would encourage people holding the largest amounts of land to break up their properties and sell land to settlers at more reasonable prices.
"Large areas of land, held often by absentees, lay idle and impoverished for lack of capital," reported scholars J B Condliffe and W Airey in A Short History Of New Zealand, first published in 1925.
Greys land tax was duly introduced on undeveloped land, but property-owners found ingenious ways of fooling the government and avoiding the tax. It wasnt until "one man, one vote" was introduced that the ordinary workers were able to elect a government more capable of legislating against the wealthy landowners.
In 1891, Premier John Ballance passed New Zealands first ever income tax, incorporated in the new Land and Income Tax of that year, and directed primarily at land values and corporate activity. The next revision of that Act appears to have been in 1908, and Eddie Kahn interprets the 1908 Act as implying the tax is "voluntary".
"Most Gracious Sovereign," the Act begins, "we, your most dutiful and loyal subjects, the House of Representatives in New Zealand in Parliament, assembled, towards raising the necessary supplies to defray Your Majestys public expenses, and making an addition to the public revenue, have freely and voluntarily resolved to give and grant unto Your Majesty the several duties hereinafter mentioned, and do therefore most humbly beseech Your Majesty that it may be enacted."
So at this point in time, 1908, New Zealand obviously has the rudiments of a land and income tax freely and voluntarily gifted to King Edward VII. The rate of tax was one penny in the pound for land value, and sixpence in the pound for income about three cents in the dollar.
By getting the citizens to voluntarily agree to provide three cents in every dollar to pay for government services, the government gained a foot in the door. Naturally, having been given an inch they took a mile and taxes in New Zealand rose as high as 98 cents in the dollar under the Muldoon governments penal rates in years to follow.
Is it possible that New Zealanders can legally opt out of the tax system using the same freedoms available to American citizens? Kahn and New Zealander Andrew Carstensen believe they can. To that end, Carstensen wrote a letter under the Official Information Act to the Inland Revenue Department in early 1998, asking them to define what income is. The disturbing result was written proof that the IRD doesnt know exactly what income is, or isnt willing to say.
"There is no definition of income in the current Income Tax Act," the IRDs national policy manager, Margaret Cotton, wrote back.
The reason appears to be that successive governments since 1908 have been anxious to cast their tax net as widely as possible, opting for deliberate ambiguity in defining key terms in the tax legislation.
"When you fill out your tax return, it tells you to list your income," explains Carstensen. "Well whats income? They wont tell you what income is, they let you decide what you think income is and when youve made that decision yourself, you dob yourself in, basically."
By filing a tax return, he says, you are voluntarily telling the IRD you accept their jurisdiction over you. There is no longer a technical question as to whether you are a taxpayer. All that remains to be determined is how much. You have entered a contract with the Government.
Every Act of Parliament carries an "interpretation" section that spells out the meanings of key words and terms in the Act. In the Revenue Acts, most definitions are prefaced by the word "means". However, certain crucial words are not given an exact meaning. Take the definition for "person":
"Person: Includes [our emphasis] a company and a local or public authority; and also includes an unincorporated body of persons."
At no point does the Income Tax Act specify that the term Person" includes a "natural person", which is legal terminology for an actual living and breathing person. Nor does the Act even define "natural person" although it does define "natural gas". This is despite the fact that the phrase "natural person" is specifically referred to in the Income Tax Act under the definition "foreign entity".
It would have been extremely easy for the drafters of New Zealands tax law to simply say:
"Person: means a natural person, and also includes a company etc."
Why wasnt it done that way? Why doesnt the definition of "person" in the Income Tax Act specifically include "natural persons"? And does this mean that ordinary members of the public can legally stop paying tax on the grounds that the legislation is unclear and therefore void?
Curiously, and probably not coincidentally, nor do the tax codes of Canada or Australia use the word "means" to define a person: both countries use "includes". Neither do those countries define a "person" as specifically including a natural person.
An innocent oversight by one legal hack in the Crown Law Office in Wellington while drafting legislation could be explained as a simple mistake, but when three developed nations all have the same definitions for person, with no mention of human beings, one could start to wonder. Surely, argue tax researchers, if those governments had the power to compel all humans to pay tax on their income in the publicly understood sense of the word then they would have plainly outlined this in the statutes.
Indeed, it is a requirement in New Zealand at least that where a Government moves to alter an existing common law right, that such alterations must explicitly be contained in legislation. If the Government intended to remove a natural persons right to contract out their labour for a sum of money, surely it would be explicitly spelt out in the Income Tax Act.
Contrast the vague definition of "person" with the very precise definition of "natural gas" in the New Zealand Income Tax Act:
"Natural gas: means the gaseous mixtures of petroleum, in a stabilised form, which remain after the separation of crude oil or condensate from the wellstream in the production facilities and which have not been subjected to further processing."
Nice to know the IRD can be so exact about what natural gas is, and yet fail to include natural persons in the definition of who is liable for tax. Nor does the Acts Interpretation Act which tells courts how to interpret legislation shed any light on the person issue.
Just as the US Internal Revenue Service managed to fool a hundred million Americans into paying tax by playing legal word games with them, Kahn argues the NZ IRDs inability to define "income" or "person" is a deliberate act aimed at undermining New Zealanders common law rights not to pay tax on ordinary employment earnings by heavying people into the tax system under colour of law.
"By using the word includes rather than the word means, they dont define it at all. When you press them on the issue does this include anything else other than what was specifically listed? they cant show you that theres anything else.
"What weve got is that the IRD has been no more successful in answering our questions than the IRS has, which are: What tax am I liable for? What form am I required to file it on? They cant answer the questions! You know, in America I have over two thousand clients at ARLS, and theyve never been able to answer the question one time for any of the clients.
"What it really boils down to, if you go look at the original Act, 1908, its not even a tax, its a contribution by companies to pay the public expenses of His Majesty. Thats all it was for. It was freely and voluntarily given. Thats not a tax, thats a contribution."
On the battleground of legal technicalities, one of Kahns weapons of choice against the NZ IRD is what he claims is the departments failure to officially "gazette" the requirement for taxpayers to file tax returns.
"If theyre required to file a form at all, it must be published in the Gazette, there must be a volume date and page number that this public obligation exists and the public has to have public notice of it. Its never been published, so obviously theres no requirement.
"If somebody doesnt file a form, theyll get a letter saying why didnt you file?, and the answer is I didnt know there was an obligation to file. If there is it must be published in the Gazette. Please give me the volume date and page number and Ill be happy to do it."
In an OIA request, Carstensen asked the IRD to provide a list of all their tax forms, "and the IR3 and IR5 [tax return] files were not on that list".
But its the practical, not the theory, that will determine whether Kahn and his American legal advisors can cause the IRD lasting damage. Theyre already claiming victory with a New Zealand taxpayer, Jeanette Harper of Tauranga.
On April 6, 1998, the IRD wrote to Harper telling her she owed the New Zealand Government $286.13 in unpaid tax. She wrote back, under the Privacy Act 1993, demanding to know "What particular tax am I, Jeanette Elizabeth Harper, a human being, liable for, and what particular form am I required to file for that tax?
"Please send to the requester copies of documents that evidence the liability, if any, as a human being, and also the evidence that links this liability to the particular form required to be filled out. I am a law abiding citizen and as such only require the specific facts as requested. I specifically request no opinions be given."
The IRDs Glenn Harris, in the Tauranga office, replied:
"As a person who is a New Zealand resident you are liable to Income Tax on all your income, in this instance wages, interest and rent. Person is defined in Section OB1 of the Income Tax Act. I am aware that it is your understanding this definition includes just a company and a local or public authority; and also includes an unincorporated body of persons but with respect, the definition also includes the word Person. Person has the natural and ordinary meaning of the word."
The bombardment on the IRD continued, however.
"It is a cardinal rule of statutory interpretation that a word cannot be used to define itself," wrote Harper on advice. "That is to say, you cannot use the term person to define the word person. Im sorry, but with respect, this makes no sense.
"This is also in direct contrast to the written response from Margaret E. Cotton, National Advisor, Operations Policy, on behalf of the Commissioner of Inland Revenue."
Jeanette Harper was roasting the IRD on its own spit, using a legal opinion shed obtained from the IRD head office under the Official Information Act. In it, Cotton repeated the definition of person contained in the Act, then added: "There is no other legislative reference which alters that definition."
Asked in the same OIA request whether the term "human being" was included in the definition of "person" contained in the Act, Cotton replied:
"Inland Revenue does not hold any information which evidences that the term Human Being is included in the definition of the term person in the current Income Tax Act."
"I am a human being," Harper wrote to the IRD investigator. "However, for the specific purposes of the Income Tax Act 1994, I do not fall within the definition of the term person."
There were some further shots fired, but thats the essence of it. Ultimately, Harper did not file a tax return this year, and instead wrote in to say she did not believe she had earned any income as defined by the Act, and therefore was not required to file a tax return.
The IRD accepted her letter and refunded a $50 late filing penalty charge.
Harpers status as New Zealands highest profile non-taxpayer (except perhaps for people associated with Fay Richwhite & Co) is no accident. Her son is accountant Andrew Carstensen, the head of New Zealand Rights Litigators an offshoot of Eddie Kahns American Rights Litigators.
"Basically the issue is quite simple, people have to get into the mindset: they are either natural persons born with human rights, or they are inferior serfs still subject to the Crowns orders and taxes."
After more than 60 letters and OIA or Privacy Act requests of the IRD, Carstensen believes he has evidence the income tax in New Zealand is voluntary, and he believes the IRD is writhing under the pressure.
"What Ive found over time is that if you ask them a question theyll give you a straight answer, somewhere in the letter, and then theyll spend the rest of the letter saying what theyve just said is not right."
Case in point? Take this letter from the IRDs Margaret Cotton to Carstensen under the OIA.
"In [your request] you have asked for copies of the delegation authority order of notice for human beings to keep Income Tax records.
"There is no legislative reference in the Inland Revenue Acts which specifically require human beings to keep income tax records. The legislation requires taxpayers and persons to keep income tax records.
"As a taxpayer is a person and persons are in common parlance human beings, human beings are required to keep income tax records."
So in one paragraph there is no requirement for human beings to keep tax records, but in the next the IRD says there is.
New Zealand Rights Litigators then fired off a series of OIA requests to the IRD that make fascinating reading. In the first, they asked if it was compulsory for an individual to have a tax file number.
On 20 September 1999, the IRDs David Belchamber wrote back on behalf of the Commissioner:
"There is no provision in either that [the Income Tax] Act or the Tax Administration Act 1994 that makes it compulsory for taxpayers to have a tax file number."
You heard it right: there is no law requiring you to have an IRD number. Carstensen, Eddie Kahn and others believe this provides a major clue as to the voluntary nature of income tax. Kahn argues that if the Government had a lawful right to tax natural persons, it would have made tax numbers compulsory. Instead, you are given a choice: you can comply, or not.
But the Government, like the US Government, has a card up its sleeve. Knowing that it has complete control over companies, the IRD has told companies that where a worker chooses to exercise their legal right not to provide a tax file number, the company is required by law to deduct a flat rate tax of 45% from whatever that worker receives. The tax is imposed on the companys wage expenditure, not on the employee.
Those who "voluntarily" accept the IRD number will face tax deductions as low as 19.5% as a reward.
A similar "voluntary" carrot and stick approach was adopted by the Australian Government ten years ago in its ill-fated bid to introduce a "voluntary" national ID card. Australians were told the card was not compulsory for natural persons, but that businesses or banks who traded with a cardless person would face fines of up to $20,000.
With the controversial new NZ drivers licences, applicants are asked to sign consent forms allowing the Government to use their information. If the licences are compulsory, critics argue, why does the Government need your permission? In the US and Canada, researchers have discovered that drivers licences like income tax are voluntary for natural persons, but that if you register a vehicle or apply for a licence you are effectively entering a contract with the government giving them the power from that moment on to punish you for breaching the rules of the contract.
But back to the IRD. In a second letter, the tax department said that although it was not compulsory for anyone to have an IRD number, failure to provide one meant the person concerned would not be permitted to file a tax return or claim back any overpayment of tax.
So here are two important points: you are not required by law to have a tax number. If you do not provide one, you cannot file a tax return either. Now comes the triple whammy:
"You have asked if you can give up an IRD number and close your account if you wish," wrote the IRDs David Belchamber.
"I can advise that IRD numbers are normally issued for life. However, the number can be closed off if it is no longer required."
In other words, even if you have an IRD number you can return it and close your account with the tax department. Does this sound like the essence of a compulsory tax system, or do the rules only apply to those who choose to become taxpayers?
There is a big difference, however, between the United States and New Zealand, and the growing tax revolt in New Zealand, Australia and Canada is raising public awareness of that difference to a potentially dangerous level. What happens, argues Carstensen, when it dawns on New Zealanders that legally they really are still feudal serfs who must pay a tithe to the Crown? What happens when they realise that Americans have managed to gain a whole raft of rights that Kiwis and Aussies do not have?
"If you look at the Book of Genesis, chapter 47," says Carstensen, "you see one of historys first recorded instances of income tax. It tells how the people sold their souls into slavery for the Egyptian Pharaoh. The Pharaoh at the time said OK then, I will take one fifth of everything you earn from now onwards, now that you are my slaves, and you can have four fifths to provide food, clothing and shelter.
"Were actually worse off in New Zealand now, where the Government is taking nearly 40% of what we the people are earning, than the Hebrew slaves in Egypt were. In fact, were twice as badly off."
At the turn of the century in Britain, according to contemporary encyclopedia reports, the average income tax across all families was six shillings a week, but a person of moderate to small means paid "little in taxes, and, indeed, he can if he chooses escape direct taxation altogether." The rich were "very heavily taxed indeed often to the extent of a third of his income."
US tax litigator Lynne Meredith calls the new drive to redefine Government taxation powers "a new, financial, War of Independence", which may not be far from the truth.
Constitutional experts in New Zealand claim the Crown has absolute control in this country because there is no written constitution guaranteeing the individual sovereignty of NZ citizens.
"The Government doesnt want it that way, because adopting a Constitution as the fundamental law of the nation could remove a Governments right to introduce reforms or policy initiatives that were in conflict with the Constitution," remarked one constitutional lawyer privately.
"At the moment, the Government has all the power. If these tax protesters are successful, all that will happen is the Government will pass new statutory law to negate it. New Zealanders only have the rights that the Crown allows them to have."
Andrew Carstensen doesnt think the Government would have the courage to publicly slap its citizens in the face and risk a domestic political crisis.
"My feeling is that they wont change it. If they do, then theyre admitting that previously a natural person did not have to pay tax and they could be faced with refund claims. Kiwis have a choice. They have the right to be free or the right to be enslaved. But people genuinely dont realise they have a choice."
And critics argue that it really is a choice. Canadian tax researcher Eldon Warman, heading a movement called "De-Tax Canada", says people often ask why the Government wont simply close the loophole by changing the law. He doesnt believe they can.
"If they could have written the [Canadian] Income Tax Act so as to include natural persons, it would never have been written that way in the beginning or rewritten that way in subsequent amendments. The Government wouldnt have had to resort to manipulating contract law and to implementing other elaborate means to play upon the legalese ignorance of the Canadian people.
"But, further, the basis of this detax system is the fact that the Government cannot make statutes, rules or regulations requiring a natural person to either make, or not to make, a contract. It would be an interference in the property right."
But there is another issue: what happens if so many New Zealanders refuse to pay tax that it causes a Government crisis anyway? With public opinion of the IRD at an all time low, and many New Zealanders angry at the departments apparent inability to collect hundreds of millions of dollars from tax dodging big business, some officials are admitting privately there is a real risk that the tax system and the Government could be crippled by large numbers of people opting to use cheap tax haven and trust solutions to keep their income and assets out of reach, the same way the big boys do.
Eddie Kahn says its a wake-up call.
"I think that New Zealanders need to take control of their Government, and the way you do that is by telling your MPs: no.
"You have to get into this mentality: I pay your salary. Youre there for my benefit, not yours. If youre not benefiting me, then I dont want you there.
"You are really in control, as long as you exercise control. If you dont exercise it the politicians will assume it for themselves."
Carstensen expects the New Zealand Government to wheel in friendly constitutional lawyers to try to play down or rubbish the existence of a problem "but then, youd expect them to do that, wouldnt you. To do anything else would be admitting they have no legal right to govern, and no right to levy taxes. The Government, through the news media, has to try and convince the public that there is no crisis and no power vacuum."
A decade ago, the citizens of California brought their Government to its knees in a tax strike. Ultimately, New Zealanders, Australians and Canadians are yet to test their powers, but the knowledge that the US Internal Revenue Service is allowing Americans to opt out of the tax system is likely to put incredible pressure on the former British colonies and the constitutional void appearing to surround them.