Charles P. Dewitt - Page 7

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          defendant's failure to file returns was willful, which was a                
          necessary element of proof in that criminal case.                           
               In Coleman v. Commissioner, 791 F.2d 68 (7th Cir. 1986),               
          affg. an order of this Court granting summary judgment in favor             
          of respondent, in a case similar to this case, cited by                     
          respondent in her motion for judgment on the pleadings, the court           
          specifically held that the arguments made by the taxpayer that              
          the Sixteenth Amendment authorizes only excise taxes and excise             
          taxes will be imposed only on Government granted privileges, were           
          "tired arguments that were frivolous".  In Martin v.                        
          Commissioner, 756 F.2d 38, 40 (6th Cir. 1985), affg. T.C. Memo.             
          1983-473, also cited by respondent in her motion for judgment on            
          the pleadings, the Court of Appeals, in disposing of a taxpayer's           
          argument that the Supreme Court had held that an income tax is an           
          excise tax, which can only be assessed against those either                 
          licensed or incorporated, stated:                                           
                    This argument is baseless.  In Brushaber                          
               [Brushaber v. Union Pacific R.R. Co., 240 U.S. 1                       
               (1916)], the Court found the 1913 income tax law to be                 
               constitutional.  The Court also noted that in Pollock                  
               [Pollock v. Farmers Loan & Trust Co., 158 U.S. 601                     
               (1895)] it had previously found the taxing of income                   
               from professions, trades, employments or vocations to                  
               be constitutional in the form of an excise tax.  In                    
               light of the sixteenth amendment, however, all taxation                
               of income, "from whatever source derived," was found to                
               be constitutional in Brushaber.  A multitude of cases                  
               following Brushaber have held that the type of revenues                
               and receipts earned by appellant, a substantial farmer,                
               constitute taxable income under the Internal Revenue                   
               Code. * * *                                                            
          Martin v. Commissioner, supra at 40.                                        

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