Egnal v. Comm'r of Internal Revenue

• Decision Date: 04 November 1975
• Docket Number: Docket Nos. 5760-73,3690-75.
• Parties: JOHN DAVID EGNAL, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENTCLAUDIA ANN ELFERDINK AND JOHN DAVID EGNAL, PETITIONERS v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
• Court: U.S. Tax Court

65 T.C. 255

JOHN DAVID EGNAL, PETITIONER

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENTCLAUDIA ANN ELFERDINK AND JOHN DAVID EGNAL, PETITIONERS

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket Nos. 5760-73

3690-75.

United States Tax Court

Filed November 4, 1975.

John David Egnal and Claudia Ann Elferdink, pro se.

Petitioners 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 of the deficiencies. Susan Jo Russell, 60 T.C. 942 (1973), and Abraham J. Muste, 35 T.C. 913 (1961), reaffirmed.

OPINION

TANNENWALD, Judge:

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 tax¹ 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    ¦
                +--------------------------------+
                

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), and Memorandum Opinions too numerous to cite), petitioners argue that we should reexamine our prior decisions on the ground that they rest upon authorities which are distinguishable or are now of doubtful validity. On the basis of prior decisions, we would be inclined summarily to sustain respondent's motions. However, the careful and detailed manner in which petitioners have presented their case has influenced us to elaborate our views on the issues involved herein to a greater degree than we have in the past.

In their petitions, petitioners claim 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 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 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 (9th Cir. 1969), cert. denied 397 U.S. 1036 (1970). Cf. Pietsch v. President, 434 F.2d 861 (2d Cir. 1970), cert. denied 403 U.S. 920 (1971); Kalish v. United States, 411 F.2d 606 (9th Cir. 1969) (per curiam), cert. denied 396 U.S. 835 (1969); Susan Jo Russell, supra; Abraham J. Muste, supra. See also Flast v. Cohen, 392 U.S. 83 (1968) (‘first nexus' requirement).

A 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.² See Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973), and cases cited, 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), affd. per curiam 252 F.2d 490 (6th Cir. 1958), cert. denied 357 U.S. 906 (1958); Susan Jo Russell, supra; Abraham J. Muste, supra. As to taxation, this principle follows a fortiori from cases holding that the power to raise armies by conscription is constitutionally distinct and legitimate without regard to the legality of the concurrent exercise of the war power. United States v. Jacques, 463 F.2d 653 (1st Cir. 1972); United States v. Garrity, 433 F.2d 649 (8th Cir. 1970); United States v. Gillette, 420 F.2d 298 (2d Cir. 1970), affd. 401 U.S. 437 (1971); United States v. Owens, 415 F.2d 1308 (6th Cir. 1969), cert. denied 397 U.S. 997 (1970); Simmons v. United States, 406 F.2d 456 (5th Cir. 1969), cert. denied 395 U.S. 982 (1969); cf. United States v. Sisson, 294 F.Supp. 511 (D. Mass. 1968), subsequent opinions at 294 F.Supp. 515 and 297 F.Supp. 902 (1969), appeal on other grounds dismissed 399 U.S. 267 (1970). On the basis of the foregoing authorities, we seriously question whether petitioners herein satisfy the ‘second nexus' requirement.³

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 (1962), and its progeny. See also United States v. Nixon, 418 U.S. 683 (1974). But, whatever the scope of the standards enunciated in Baker v. Carr (see Mr. Justice Marshall's opinion in chambers in Holtzman v. Schlesinger, 414 U.S. 1304, 1311 (1973), the courts have sought to draw a distinction between justiciability as to a case involving the respective roles of the three branches of our Federal Government, where an issue of internal domestic affairs is involved, and a case, such as this, where the issue involves foreign affairs (including the conduct of a foreign war) and have refused to find justiciability in the latter situation, at least where both the executive and legislature have acted in the premises. Luftig v. McNamara, 373 F.2d 664 (D.C. Cir. 1967) (per curiam), cert. denied 387 U.S. 945 (1967); Drinan v. Nixon, 364 F.Supp. 854 (D. Mass. 1973); United States v. Sisson, supra; Atlee v. Laird, 347 F.Supp. 689 (ED. Pa. 1972), affd. without opinion 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 of Orlando v. Laird, 443 F.2d 1039 (2d Cir. 1971), and Massachusetts v. Laird, 451 F.2d 26 (1st Cir. 1971).⁴ On the basis of these authorities, we think it highly doubtful that the legality or constitutionality of the Vietnam war is within the scope of judicial competence.⁵ The facts that the Vietnam war is over and that therefore the ‘political’ character of the issues raised herein may not have the exacerbating effect that seemed to exist while the war continued (cf. Poe v. Ullman, 367 U.S. 497, 508-509 (1961), cited in Flast v. Cohen, 392 U.S. at 95) do not justify a different point of view.

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. ⁶ In any event, it is unnecessary for us to resolve those doubts because of our views on the ‘complicity’ issue.

It seems clear that the Nuremberg Principles petitioners cite⁷ are declaratory of existing international criminal law. United States v. Goering (The Nurnberg Trial), 6 F.R.D. 69, 107-111 (International Military Tribunal 1946). The laws of war are enforceable within the United States. Ex Parte Quirin, 317 U.S. 1 (1942); The Paquete Habana, 175 U.S. 677 (1900). It is possible that the United States could not compel an individual to perform an act which would subject him to such personal criminal liability. See Korematsu v. United States, 323 U.S. 214, 220 (1944), and 323 U.S. at 232 (Roberts, J., dissenting). Cf. Levy v. Parker, 478 F.2d 772, 796-797 (3d Cir. 1973), revd. on other grounds 417 U.S. 733 (1974); Switkes v. Laird, 316...