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John David Egnal, Petitioner v. Commissioner of Internal Revenue, Respondent; Claudia Ann Elferdink and John David Egnal, Petitioners v. Commissioner of Internal Revenue, RespondentEgnal v. CommissionerDocket Nos. 5760-73, 3690-75November 4, 1975, Filed
United States Tax Court *39
Decision will be entered for the respondent in docket No. 5760-73 .An appropriate order will be entered in docket No. 3690-75 . 12Petitioners refused to pay income taxes on the grounds that, by participating in the Vietnam war, the United States Government acted illegally and unconstitutionally and was guilty of "war crimes," that payment of such taxes would constitute complicity in such alleged "war crimes" in violation of the Nuremberg principles, and that they had satisfied their tax obligation by equivalent payment to the Philadelphia War Tax Resistance Alternative Fund.
Held , the payment of income taxes would not amount to such alleged complicity.Held, further , none of the grounds asserted by petitioners justifies redetermination*40 of the deficiencies.Susan Jo Russell , 60 T.C. 942">60 T.C. 942Abraham J. Muste , 35 T.C. 913">35 T.C. 913John David Egnal and Claudia Ann Elferdink, pro se.Lowell F. Raeder , for the respondent.Tannenwald,Judge .TANNENWALD*255 OPINION
These cases come before us on respondent's motion for judgment on the pleadings in docket No. 5760-73 and on his motion to dismiss for failure to state a claim in docket No. 3690-75. Respondent determined the following deficiencies in income tax 1 against petitioners (who were residents of Philadelphia, Pa., at the time of the filing of the petitions herein):
Docket No. Year Deficiency 5760-73 1970 $ 274.62 3690-75 1973 6,289.30 *41 *256 The gravamen of the petitions is that petitioners should not be called upon to pay any deficiency in tax because, during the taxable years at issue, the United States, by engaging in the Vietnam war, acted criminally in violation of its treaty obligations and the United States Constitution and petitioners' payment of taxes would cause them to be guilty of complicity in war crimes. Recognizing that this Court has previously refused to sustain taxpayers who asserted comparable positions (see
Susan Jo Russell , 60 T.C. 942 (1973)Abraham J. Muste , 35 T.C. 913 (1961)In their petitions, petitioners claim*42 that, by prosecuting the war in Indochina, the United States violated "recognized statutes of domestic and international law, including the Constitution of the United States, the United Nations Charter, the Hague Convention of 1907, the Geneva Convention of 1949, the Nuremberg Principles, and the Geneva Accords of 1954, among others." However, although our reasoning herein is equally applicable to all of the foregoing, we have concentrated on the Nuremberg Principles because, in their memorandum offered in opposition to respondent's motions, petitioners focus on these principles and state their argument syllogistically, as follows:
Major premise: The Nuremberg Principles, particularly #7, prohibit complicity in the commission of crimes against peace (planning and waging of aggressive war) and war crimes.
Minor premise: The United States government * * * used substantial portions of its tax revenues to commit crimes against peace and war crimes.
1st Conclusion: The payment of taxes * * * by a United States citizen is "complicity" within the meaning of Nuremberg Principle No. 7;
2nd Conclusion: A United States citizen has the legal right to refuse payment of taxes * * * and United States*43 courts have a duty to enforce that right.
The threshold question in a case such as this is whether the taxpayer has "standing." Here, there is a demand being made directly upon the petitioners, in the form of a claim for taxes, and *257 we think it clear that they have "standing" in the narrow frame of reference accorded to that term.
Autenrieth v. Cullen , 418 F.2d 586">418 F.2d 586397 U.S. 1036">397 U.S. 1036 (1970). Cf.Pietsch v. President , 434 F.2d 861 (2d Cir. 1970)403 U.S. 920">403 U.S. 920 (1971);Kalish v. United States , 411 F.2d 606 (9th Cir. 1969)396 U.S. 835">396 U.S. 835 (1969);Susan Jo Russell, supra ; Abraham J. Muste, supra .Flast v. Cohen , 392 U.S. 83">392 U.S. 83A serious question exists, however, as to whether petitioners have standing in the broader sense of that term, i.e., whether petitioners have satisfied the "second nexus" requirement of
Flast v. Cohen, supra .Holtzman v. Schlesinger , 484 F.2d 1307 (2d Cir. 1973)484 F.2d at 1315 . It is abundantly clear that the improper, illegal, or even unconstitutional behavior of the United States in the conduct of a war does not so permeate the system of government as to deprive it of its other sovereign prerogatives, including the power to tax.Pietsch v. President, supra ; Kalish v. United States, supra ; Farmer v. Rountree , 149 F. Supp. 327 (M.D. Tenn. 1956)252 F.2d 490">252 F.2d 490 (6th Cir. 1958), cert. denied357 U.S. 906">357 U.S. 906 (1958);Susan Jo Russell, supra ; Abraham J. Muste, supra .United States v. Jacques , 463 F.2d 653 (1st Cir. 1972)United States v. Garrity , 433 F.2d 649">433 F.2d 649United States v. Gillette , 420 F.2d 298 (2d Cir. 1970)401 U.S. 437">401 U.S. 437 (1971);United States v. Owens , 415 F.2d 1308">415 F.2d 1308397 U.S. 997">397 U.S. 997 (1970);Simmons v. United States , 406 F.2d 456">406 F.2d 456395 U.S. 982">395 U.S. 982 (1969); cf.United States v. Sisson , 294 F. Supp. 511">294 F. Supp. 511294 F. Supp. 515">294 F. Supp. 515 and297 F. Supp. 902">297 F. Supp. 902 (1969), appeal on other grounds dismissed399 U.S. 267">399 U.S. 267 (1970). On the basis of the foregoing authorities, we seriously question whether petitioners herein *258 satisfy the "second nexus" requirement. 3*47 Beyond the question of "standing" in either its narrow or broad sense is the further question of "justiciability," a question to which petitioners devote a sizable portion of their legal argument. There is no doubt that the doctrine of justiciability has been substantially extended by
Baker v. Carr , 369 U.S. 186">369 U.S. 186United States v. Nixon , 418 U.S. 683">418 U.S. 683Baker v. Carr (see Mr. Justice Marshall's opinion in chambers inHoltzman v. Schlesinger , 414 U.S. 1304">414 U.S. 1304Luftig v. McNamara , 373 F.2d 664 (D.C. Cir. 1967)387 U.S. 945">387 U.S. 945 (1967);Drinan v. Nixon , 364 F. Supp. 854">364 F. Supp. 854United States v. Sisson, supra ; Atlee v. Laird , 347 F. Supp. 689 (E.D. Pa. 1972)411 U.S. 911">411 U.S. 911 (1973), in which Adams,J ., speaking for a three-judge court, ably and exhaustively analyzes the "justiciability" cases in the context of the power to expend appropriated funds, emphasizes the foregoing distinction, and devotes considerable attention to the seemingly contrary thrust ofOrlando v. Laird , 443 F.2d 1039">443 F.2d 1039Massachusetts v. Laird , 451 F. 2d 26 (1st Cir. 1971)Poe v. Ullman , 367 U.S. 497">367 U.S. 497Flast v. Cohen , 392 U.S. at 95*50 We recognize that, if the doubts which we have indicated above were confirmed, the result might be that petitioners would be without a judicial forum in which to raise several of the issues they seek to have decided. But this is a consequence which cannot be avoided; petitioners must seek resolution of those issues in the political arena. See
Atlee v. Laird , 347 F. Supp. at 708*51 It seems clear that the Nuremberg Principles petitioners cite 7*53 *260 are declaratory of existing international criminal law.
United States v. Goering (The Nurnberg Trial), 6 F.R.D. 69">6 F.R.D. 69Ex Parte Quirin , 317 U.S. 1">317 U.S. 1The Paquete Habana , 175 U.S. 677">175 U.S. 677Korematsu v. United States , 323 U.S. 214">323 U.S. 214323 U.S. at 232 (Roberts,J ., dissenting). Cf.Levy v. Parker , 478 F.2d 772">478 F.2d 772417 U.S. 733">417 U.S. 733 (1974);Switkes v. Laird , 358">316 F. Supp. 358In time of war, virtually the entire loyal population is to some degree bound up in the struggle. While citizens may have a moral duty to seek an end to illegal Government acts by political means and to refuse to participate or directly assist in the commission of such acts, international law does not require them to abstain from all forms of cooperation with the Government in the meantime. To impose criminal sanctions on the taxpayer, *54 the munitions worker, or the voter who casts his ballot for the Government would be both unfair and impractical. Bringing guilt and opprobrium upon the entire population of the offending State would run counter to the humane and reconciliatory purposes *261 which underlie the entire body of law. 9
The view of the Nuremberg prosecutors on the responsibility of individual Germans for the nation's crimes may be gleaned from the opening statement made by the United States prosecutor, Mr. Justice Jackson: 10
We charge guilt on planned and intended conduct that involves moral as well as legal wrong. And we do not mean conduct that is a natural and human, even if illegal, cutting of corners, such as many of us might well have committed had we been in the defendants' positions. It is not because*55 they yielded to the normal frailties of human beings that we accuse them. It is their abnormal and inhuman conduct which brings them to this bar.
* * *
We would also make clear that we have no purpose to incriminate the whole German people. We know that the Nazi Party was not put in power by a majority of the German vote. * * *
Just as individual citizens escaped criminal culpability, so did the rank and file of the Nazi party, even though they may have had knowledge of their leaders' crimes. Thus, it was observed that, regarding horrendous actions against the Jews, the evidence "forbids us to believe that any person could be identified with any part of Nazi action without approving this most conspicuous item in their program" (2 Trial of the Major War Criminals Before the International Military Tribunal [T.M.W.C.] 119 (1947)) and that Germany's prewar military preparations "were of a magnitude which surpassed all need of defense, and every defendant, and every intelligent German, well understood them to be for aggressive purposes" (2 T.M.W.C. at 131).
*56 Finally, Mr. Justice Jackson summarized the law of individual responsibility, as contained in the Charter of the International Military Tribunal:
The Charter also recognizes individual responsibility on the part of those who commit acts defined as crimes, or who incite others to do so, or who join a common plan with other persons, groups or organizations to bring about their commission. The principle of individual responsibility for piracy and brigandage, which have long been recognized as crimes punishable under international law, is old and well established. That is what illegal warfare is. * * *
* * *
*262 Of course, we do not argue that the circumstances under which one commits an act should be disregarded in judging its legal effect. A conscripted private on a firing squad cannot expect to hold an inquest on the validity of the execution. The Charter implies common sense limits to liability * * *
The Charter also recognizes a vicarious liability, which responsibility is recognized by most modern systems of law, for acts committed by others in carrying out a common plan or conspiracy to which a defendant has become a party. * * * [2 T.M.W.C. at 149-151.]
The charter*57 was not conceived as greatly expanding the principle of complicity in crime, an expansion which would be necessary to any finding of guilt on the part of petitioners. The tribunal itself was sensitive to the proper limits of criminal liability; in defining the criminality of membership in specified organizations, it said:
that definition should exclude persons who had no knowledge of the criminal purposes or acts of the organization and those who were drafted by the State for membership, unless they were personally implicated in the commission of acts declared criminal * * *. Membership alone is not enough * * * [6 F.R.D. at 132 .]
The defendants Hess and Fritzsche, despite their high government positions, were acquitted of direct participation in war crimes and crimes against humanity.6 F.R.D. at 150, 187 . 11 It is inconceivable that a conviction could have been obtained of a defendant charged simply with paying his taxes to that same Government.*58 An American court has recognized the limited scope of personal criminal liability for war crimes, holding that mere membership in the Armed Forces by a draftee does not constitute complicity in their alleged illegal acts.
United States v. Valentine , 288 F. Supp. 957">288 F. Supp. 957Levy v. Parker, supra ; Switkes v. Laird, supra .On the basis of the foregoing, we are satisfied that the rationales of
Abraham J. Muste, supra first amendment ), and our decision inSusan Jo Russell, supra Autenreith v. Cullen, supra ; Susan Jo Russell, supra .Petitioners seek an opportunity to present proof of the factual allegations made in the petitions. They are entitled to that opportunity only if it could result in a redetermination of the deficiencies found by respondent. In these cases, it would be useless for us to hear the proffered evidence, because we have concluded that the legal theories relied upon by petitioners to reduce their taxes are erroneous.
Respondent's motions will be granted and
Decision will be entered for the respondent in docket No. 5760-73 .An appropriate order will be entered in docket No. 3690-75 . 12*60
Footnotes
12. In the petition in docket No. 3690-75, there is a general allegation of error on the part of respondent in disallowing a deduction of $ 250 for real estate taxes. Respondent has not yet filed an answer to the petition. Accordingly, our order will be limited to the arguments presented in respect of respondent's motion to dismiss and the case will be calendared for trial on the issue relating to the deduction of real estate taxes.↩
1. For the taxable year 1970, respondent, by amended answer, seeks an increased deficiency of $ 5,406.23. Because of our disposition of these cases in these proceedings, it is unnecessary for us to delineate the procedural "muddle" which caused respondent to claim such increased deficiency or the burden of proof issues which may be involved.↩
2. The "first nexus" requirement is the establishment of a "logical link" between the claimant's status as a taxpayer and the type of governmental action attacked. See
392 U.S. at 102 . The "second nexus" requirement is between that status and the nature of the constitutional infringement alleged, i.e., that the challenged action "exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. 1, § 8." See392 U.S. at 102-103↩ .3. We do not think this requirement would be met by the application of an apportionment formula to petitioners' income tax based upon the percentage of Federal expenditures allocable to the Vietnam war. Cf.
Autenrieth v. Cullen , 418 F.2d 586">418 F.2d 586397 U.S. 1036">397 U.S. 1036 (1970);Farmer v. Rountree , 149 F.Supp. 327 (M.D. Tenn. 1956)252 F.2d 490">252 F.2d 490 (6th Cir. 1958), cert. denied357 U.S. 906">357 U.S. 906 (1958). Whether the necessary "second nexus" might be present where the taxing statute itself earmarked the revenues to be raised for a specific unconstitutional purpose is a question we need not now decide. CompareUnited States v. Butler , 297 U.S. 1">297 U.S. 1United States v. Kahriger , 345 U.S. 22">345 U.S. 22Flast v. Cohen , 392 U.S. 83 (1968)392 U.S. at 102-103 . But see Mr. Justice Douglas dissenting from the denial of certiorari inSarnoff v. Shultz , 409 U.S. 929 (1972)Massachusetts v. Laird , 400 U.S. 886↩ (1970)4. Since
Atlee v. Laird , 347 F. Supp. 689">347 F. Supp. 689411 U.S. 911">411 U.S. 911 (1973), the Second Circuit Court of Appeals has in form maintained its benevolent attitude toward justiciability, but has taken a restrictive approach on the substantive issues. SeeHoltzman v. Schlesinger , 484 F.2d 1307">484 F.2d 1307Mitchell v. Laird , 488 F.2d 611">488 F.2d 611Massachusetts v. Laird , n. 3supra↩ .5. In so indicating, we note that we do not necessarily accept petitioners' minor premise. See p. 256
supra . That premise assumes a legal conclusion and is therefore not deemed admitted by respondent. SeeSusan Jo Russell , 60 T.C. 942↩ (1973)6. It is sometimes said of persons who oppose government compulsion or prohibition on grounds of conscience that they should not be permitted to judge the legality of their own actions. This principle has force only if society is willing -- except in exigent circumstances -- to provide a forum in which that judgment can be made. See
United States v. Owens , 415 F.2d 1308">415 F.2d 1308397 U.S. 997">397 U.S. 997 (1970);United States v. Berrigan , 283 F. Supp. 336">283 F. Supp. 336417 F.2d 1002">417 F.2d 1002 , 1009 (4th Cir. 1969), cert. denied397 U.S. 909">397 U.S. 909↩ (1970).7. The substantive law of war crimes as applied at Nuremberg is found in the Charter of the International Military Tribunal, which condemned the following:
(a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. [Agreement with the French Republic, the United Kingdom of Great Britain and Northern Ireland, and the Union of Soviet Socialist Republics respecting the prosecution and punishment of the major war criminals of the European Axis, Aug. 8 and Oct. 6, 1945, 59 Stat. 1544, 1547, E.A.S. 472.]↩
8. Petitioners do not claim that paying taxes renders them participants in a common plan or conspiracy to commit crimes against peace within the meaning of the charter (n. 7
supra ). In the light of the Nuremberg judgment, which limited liability for that crime to responsible leaders at the very highest level of government, such a claim would necessarily fail. SeeUnited States v. Goering (The Nurnberg Trial), 6 F.R.D. 69">6 F.R.D. 699. See
State v. Marley , 509 P. 2d 1095, 1110-1111↩ n. 17 (Hawaii 1973)10. 2 Trial of the Major War Criminals Before the International Military Tribunal [T.M.W.C.] 102 (1947).↩
11. Responsibility for war crimes committed by others was imputed to German Government officials almost entirely on the basis of their authority over the perpetrators. See Levinson, n. 9
supra↩ .12. In the petition in docket No. 3690-75, there is a general allegation of error on the part of respondent in disallowing a deduction of $ 250 for real estate taxes. Respondent has not yet filed an answer to the petition. Accordingly, our order will be limited to the arguments presented in respect of respondent's motion to dismiss and the case will be calendared for trial on the issue relating to the deduction of real estate taxes.↩
Document Info
Docket Number： Docket Nos. 5760-73, 3690-75
Judges： Tannenwald
Filed Date： 11/4/1975
Precedential Status： Precedential
Modified Date： 10/19/2024