'Invisible Contracts

The Residency Contract

--by George Mercier

[Pages 553-565]

Another invisible contract that is difficult to see is the Residency Contract. By being "resident" within a particular Kingdom for a certain length of time, it is presumed that you have accepted those juristic benefits which that regional Prince of yours is offering you.[1] If the benefits are legitimate, then the reciprocity your regional Prince expects back from you in the form of a state income tax, is very reasonable, and the Supreme Court has so ruled:

"(States) can tax the privilege of residence in the State and measure the privilege by net income, including that derived from interstate commerce." [2]

The entire area of State Income Taxes lies generally outside of Federal intervention, except to the narrow extent to which several slices of restrainments resident in the United States Constitution hem in your regional Prince;[3] even more so, Tax Protestors arguing philosophically doctrinaire and other economic questions on State Taxation schemes are frequently rebuffed by Federal Judges who defer the question back to the States.[4]

The basic power of taxation is an attribute of Sovereignty, and is inherent in every Government unless explicitly denied or limited by its Constitution;[5] (however, I am referring only to the expectations of reciprocity inherent as Sovereignty in the several States, and not the United States Government, which is a very unique jurisprudential structure of the world's political jurisdictions.) Properly rephrased, what that means is that the jurisdiction of Government (remember during this Residency Contract discussion, I am only talking about the several States) to first throw benefits at folks, and then in turn demand and get reciprocal taxation compensation back in return for having done so, is simply unlimited -- unless the Juristic Institution in its constitutional structure has been explicitly restrained (limited) from asking for reciprocity back in return. And when dealing with a State taxation scheme, we need to focus in on the State's statutes and its Constitution, rather than the United States Constitution, because as a general rule the States are free to throw benefits at folks, and then demand and get reciprocity back in return -- generally unhampered, unencumbered, and unrestrained by the Federal Constitution.[6]

So the place to disable a State's expectations of reciprocity has its seminal point of origin in the Juristic Institution's own Charter -- and an examination of your regional Prince's Charter will reveal that not very much reciprocity restrainment exists there, if any.[7]

As this background legal setting applies to us, Residents are objects accepting juristic benefits, and so now Residents are persons over which the State has reciprocal expectations of taxation jurisdiction, largely unhampered by the Federal Constitution, because you are a benefit acceptant object lying within the contours of its geographical perimeters.[8]

So the State has some jurisdiction over you simply because you are an object in that kingdom, however, whether or not that level of jurisdiction ascends to the reciprocal level of taxation jurisdiction when no benefits are being transferred down to you, is another question.[9]

Now we ask ourselves the usual question: Just what benefits are being thrown at us this time, in order to justify one more juristic layer of taxation?[10]

As a point of beginning, Residents accept the benefits offered by State Constitutions.[11] The fact that a state conducts certain programs for its Residents does not mean that these benefits are available to all who live within its borders.[12]

Here in New York State, we open up the State Constitution no farther that the first line in Article 1, Section 1, and we find the recital of benefits the United States Supreme Court was referring to:

"No member of this state shall be disenfranchised, or deprived of any of these rights or privileges secured to any Citizen thereof, unless by the law of the land, or the judgment of his peers..." - New York State Constitution, Article I, Section 1 ["Rights, privileges, and franchise secured"] (1938).

Generally speaking, State Residents are State Citizens; and Citizens, as members of the State body politic, possess election rights of suffrage.[13]

Another benefit inuring to State Residents is the protectorate operation of the State Police Powers.[14]

By the use if this power, a wide ranging array of benefits can be thrown at folks in justification for the enforcement of the reciprocal demands of taxation.[15] But in addressing the Residency Question itself, which is a sister to Citizenship, two Cases come to my mind:

In Cook vs. Tait,[16] which is primarily a Citizenship Contract Case, the Supreme Court ruled that income received by a Citizen of the United States while resident in Mexico is taxable due to benefits received while outside of the United States (the old acceptance of benefits story: When benefits offered conditionally have been accepted, there lies a contract and it becomes immoral not to require a mandatory exchange of reciprocity). The Court then listed those benefits that American Citizens carried with them no matter what their geographical situs was.[17]

In Shaffer vs. Carter,[18] a Resident of Illinois was experiencing income from property he owned in Oklahoma. It was held that Oklahoma can tax non-Residents on their property located within the Oklahoma boundary situs, and the reason is that protective benefits were accepted by that Oklahoma property and so the state is entitled to a part of the financial gain that property realized (which is also a correct statement of Nature, although the Supreme Court did not use those words.)[19]

The taxation key in both of those Cases was the acceptance of benefits.[20]

Viewed from a Judge's perspective, what this means is that it is permissible for a political jurisdiction to throw some benefits at you, and then demand, and get, some quid pro quo financial compensation in return for having done so. In this respect, due to Sovereignty, Governments differ from Individuals in the respect that Individuals have to document with evidence the voluntary acceptance of a benefit [of which silence, but the Ratification Doctrine, can be reasonably inferred in some circumstances] from someone else before bringing that other person to his knees in a Courtroom; Government, however, simply throws benefits at everyone at large, and the acceptance of the benefit by silence is automatically assumed absent explicit, blunt, and timely benefit rejection and disavowal by you. The several States as independent Sovereignties also possess this inherent power, except as limited by the United States Constitution.[21]

And so as it applies to occupancy, Residency Status is very much a privilege in the sense that contracts are in effect; by your silence, after talking occupancy in some Prince's kingdom, you attached a reasonable expectation of using the Prince's police protectorate powers, among taking advantage of other juristic benefits; and so now state statutes that define a reciprocal taxation liability being expected back in return after you have lived in that kingdom for some 60 to 90 days, or whatever, and then continues liability attachment unless you have been out of his kingdom for more than six months in any one year, etc. are all morally correct and provident.[22]

By your silence, benefits offered conditionally by your regional Prince were accepted by you through your refusal to disavow them, so invisible contracts where then and there created by your acts (your act of refusing to reject and disavow the juristic benefit).[23]

Therefore, State Income Tax Protestors, who merely make the declaration, while in the midst of some type of state income tax enforcement proceeding, that they "are not residents" or are not "state citizens" are wasting their time.[24]

The fact that you may have recorded that declaration in a public place, and may have also made the declaration timely, are not relevant factual elements that inure to your advantage, since the substance of your arguments is meaningless. Your Residency Contract is not unilaterally terminated by your mere declaration that you are not a Resident; contractual termination has to occur for a good substantive reason. One such reason would be Failure of Consideration (meaning, that you explicitly and timely rejected all state and municipal benefits). Now that there has been a failure of benefit transference, now you have a substantive attack to make on the assertion of a Residency Contract on you. Your objective is to terminate the contract.[25]

If you want to win your State Income Tax Cases, then do not throw arguments sounding in the Tort of unfairness at the Judge; do not pretend that the invisible contract does not exist, and do not argue that it is unfair to hold such a contract against you since either nothing "was signed" or that the Protestor baby talk of "minimum contacts" or "nexus" required by the Supreme Court in their line of State Jurisdiction Cases was not met (as your physical household inhabitancy in that kingdom overrules those types of questions designed to address factual settings where Geography Jurisdiction itself is a disputed element).[26]

You must address the Contract question head on, that by the act of your silence a Residency Contract was entered into, and you must come to grips with that fact.[27]

The local state tax collector did not receive any Notice of your Rejection of Benefits, so his assertion of a reciprocal tax against you is provident, up to a limited point. And so winning, on point, will be predicated upon your correctly addressing the existence of the contract in arguments for what it really is, and then attacking the content substantively on the hard mandatory requirement of benefit enjoyment [which does not exist in your Case due to Failure of Consideration], a defense line that causes contracts so deficient in Consideration to fall apart and collapse under attack in adversary judicial proceedings. When trying to get out of contract where one of the parties is a Juristic Institution, a few low-level Trial Judges will find your position to be novel and philosophically uncomfortable, and so you should brace yourself for some snortations descending down to the floor of the Courtroom from the Bench. I did not realize this at first, but some Judges are actually jealous of people turning around so smoothly walking away from a juristic taxation contract; the Judge went to Law School, and then possibly went to work for a law firm, and then they were called to be a Judge; in their minds they look back and see all that money they threw out the window to Government year after year only to wind up in the pockets of some Special Interest Group, and here you are, actually getting away with what they did not know how to do themselves, and what is nowhere documented in statutes.

[1] "All these appellants, indeed, shared during the taxable year the benefits of the expenditures by the State for the various activities of its Government. As the trial judge pointed out, the public schools were available to their children; they had the benefit of police protection for themselves, their families and their property; they could use the public roads daily; the courts were open for resort by them if necessary; and so with every other benefit and privilege provided by the State or its agencies, such, for instance, as water supply and sewerage. They entered upon the enjoyment of these benefits, and should be liable to a share in the taxation levied to maintain them, in the absence of any distinguishing factor in their situation." Wood vs. Tawes, 28 Atlantic 2nd 850, at 854 (1942).

Since we know that the acceptance of benefits locks folks into contracts, we also know how to get out of unwanted contracts; our distinguishing factor in our situation is going to be, of course, a Notice of Rejection of Benefits filed appropriately and timely. Until benefits have been rejected, invisible contracts are in effect and we are not entitled to prevail under any circumstances. Here, in Wood vs. Tawes, Residency Protestors tried unsuccessfully to weasel out of state income taxes. This Wood vs. Tawes case was heard before by the Maryland Court of Appeals -- but its reasoning and justification is very similar to other state judges in all 50 states.

Of those benefits that are listed above, you should know that acceptance of the twin state Police Protection Benefit and Availability of the State Courts Benefit are universally viewed by judges in all English Common Law Countries world wide as being sufficient, all by themselves, to lock folks into Residency Contracts, as silence by inhabitants is deemed acceptance of those particular juristic benefits. In a nice way, this Maryland Court is trying to say: You accepted those juristic benefits -- so pay the tax and stop trying to be cheap. Yes, protestors are irritating to judges; so let's reverse the factual setting presented for a grievance settlement, and let's first work our adversaries into an immoral position by vacating the transfer of juristic benefits to us. Now, when the state tax commission asks for money, now that there is no quid pro quo equivalence on the record, now as a moral question, we are entitled to prevail. However, if we have kids going to public schools then we will not be able to get rid of all benefits offered by the state, and our Notice of Rejection of Benefits means nothing since it is incomplete -- and we should not protest state income taxes while accepting benefits, because we are not entitled to prevail. [return]

[2] Freeman vs. Hewit, 329 U.S. 249, at 255 (1946). [return]

[3] "A state is free to pursue its own fiscal policies, unembarrassed by the Constitution, if by the practical operation of its power in relation to opportunities which it has given, to protection which it has afforded, to benefits which it has conferred by the fact of being an orderly, civilized society." - Wisconsin vs. J.C. Penney, 311 U.S. 435, at 444 (1940). [return]

[4] "... the economic wisdom of state net income taxes is one of state policy not for our decision..." - Portland Cement vs. Minnesota, 359 U.S. 450, at 461 (1959). [return]

[5] "Before we proceed to examine [the Case's] argument, and subject it to the test of the Constitution, we must be permitted to bestow a few considerations on the nature and extent of this original right of taxation, which is acknowledged to remain with the states. It is admitted that the power of taxing the people and their property is essential to the very existence of Government, and may be legitimately exercised on the objects to which it is applicable, to the utmost extent to which the Government may choose to carry it. The only security against the abuse of this power is found in the structure of Government itself. In imposing a tax the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation." - M'Culloch vs. Maryland, 17 U.S. 316, at 428 (1819). [return]

[6] "On the other hand, the Constitution, by words, places no limitation upon a state's power to tax the things or activities or persons within its boundaries. What limitations there are spring from applications to state tax situations of general clauses of the Constitution." - Joseph vs. Carter & Weeks, 330 U.S. 442, at 426 (1946). [return]

[7] "The power of taxation rests upon necessity and is inherent in every independent State. It is as extensive as the range of subjects over which the Government extends; it is absolute and unlimited, in the absence of constitutional limitations and restraints, and carries with it the power to embarrass and destroy." - Tanner vs. Little, 240 U.S. 380, at 380 (1915). [return]

[8] "... the power of taxation is not confined to the people and property of a state. If may be exercised upon every object brought within its jurisdiction. This is true. But to what source do we trace the right? It is obvious, that it is an incident of Sovereignty." - Joseph Story, in III Commentaries on the Constitution, at 490 (Cambridge, 1833). [return]

[9] "The obligation of one domiciled with a state to pay taxes there, arise from unilateral action of the state Government in the exercise of its most plenary of sovereign powers, that to raise revenue to defray the expenses of Government and to distribute its burdens equably among those who enjoy its benefits. Hence, domicile in itself establishes a basis for taxation." - Lawrence vs. State Tax Commission, 286 U.S. 276, at 279 (1931). [return]

[10] "Decisions of this Court, particularly during recent decades, have sustained nondiscriminatory, properly apportioned state... taxes... when the tax is related to... local [in-State] activities and the State has provided benefits and protections for those activities for which it is justified in asking a fair and reasonable return." - Complete Auto Body vs. Brady, 430 U.S. 274, at 287 (1976).

"The application of the rule will vary with the quality and nature of the defendant's activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting [commercial] activities within this forum state, thus invoking the benefits and protections of its laws." - Hanson vs. Denckla, 357 U.S. 235, at 253 (1957).

"But to the extent that a [person] exercises the privilege of conducting activities within a state, it enjoys the benefits and protections of the laws of that state. The exercise of that privilege may give rise to obligations..." - International Shoe vs. Washington, 326 U.S. 310, at 319 (1945). [return]

[11] "A Sovereign may impose upon everyone domiciled within his territory a personal tax, which is `the burden imposed by Governments upon its own Citizens for the benefits what that Government affords by its protection and its laws.' Any domiciled person is subject to this tax, though he be an alien or a corporation." - Joseph Beale in Jurisdiction to Tax, 32 Harvard Law Review 587, at 589 (1919). [return]

[12] The right to use certain state benefits often depends upon whether the Resident can meet certain qualifications. See generally, Residence Requirements After Shapiro vs. Thompson, 70 Columbia Law Review 134 (1970). [return]

[13] "Every Citizen shall be entitled to vote at every election for all officers elected by the people..." - New York State Constitution, Article II, Section 1. [return]

[14] "The power of taxation, indispensable to the existence of every civilized Government, is exercised upon the assumption of an equivalent rendered to the Taxpayer in the protection of his person and property, in adding to the value of such property, or in the creation and maintenance of public conveniences in which he shares -- such, for instance, as roads, bridges, sidewalks, pavements, and schools for the education of his children. If the taxing power be in no position to render these services, or otherwise benefit the person or property taxed, and such property be wholly within the taxing power of another state, to which it may be said to owe an allegiance, and to which it looks for protection, the taxation of such property within the domicile of the owner partakes rather of the nature of an extortion than a tax, and has been repeatedly held by this Court to be beyond the power of the Legislature, and a taking of property without due process of law." - Union Refrigerator vs. Kentucky, 199 U.S. 195, at 202 (1905). [return]

[15] One manifestation of the operation of the Police Powers, so called, is the creation of regulatory jurisdictions designed to restrain color and race discrimination:

"... the police powers of a State under our Constitutional system is adequate for the protection of the civil rights of its Citizens against discrimination by reason of race or color." - Justice Douglas in Bob-Lo Excursion Company vs. Michigan, 333 U.S. 28, at 41 (1947).

By multiplying little slices of invisible benefits here and there, States create a large array of benefits that are impressive to Federal Judges -- and even the 14th Amendment surfaces as an expression of Law in State Residency Contract proceedings:

"Since the 14th Amendment makes one a Citizen of the state where ever he resides, the fact of residence creates universally recognized reciprocal duties of protection by the state and of allegiance and support by the Citizen. The latter obviously includes a duty to pay taxes, and their nature and measure is largely a political matter." - Miller Brothers vs. Maryland, 347 U.S. 340, at 345 (1954). [return]

[16] 265 U.S. 47 (1924). [return]

[17] And just like the King can tax his Citizens when they have asset streams out of the country, States can tax their Residents on asset streams the Residents own outside the perimeters of the State.

"A state may tax its residents upon net income from a business whose physical assets, located wholly without the state, are beyond its taxing power... That the receipt of income by a resident of the territory of a taxing sovereignty is a taxable event is universally recognized. Domicile itself affords a basis for such taxation. Enjoyment of the privileges of residence [accepting residency benefits] and the attendant right to invoke the protection of its laws [the police protectorate benefits, contract enforcement benefits, and others], form responsibility for sharing the costs of Government. `Taxes are what we pay for civilized society...' See Compania General De Tabacos De Filipinas vs. Collector of Internal Revenue [275 U.S. 87]. A tax measured by net income of residents is an equitable method of distributing the burdens of Government among those who are privileged to enjoy its benefits." - New York ex Rel Cohn vs. Graves, 300 U.S. 308, at 313 (1936) [Statements were quoted out of order.]. [return]

[18] 252 U.S. 37 (1920) [return]

[19] "The [income] tax, which is apportioned to the ability of the taxpayer to pay it, is founded upon the protection afforded by the state to the recipient of the income in his person, in his right to receive the income and in his enjoyment of it when received. These are the rights and privileges which attach to domicil within this state." - New York ex Rel Cohn vs. Graves, 300 U.S. 308, at 313 (1936). [return]

[20] When arguing state taxation jurisdiction Cases before judges, one of the permissible arguments to make is a subjective value cost/benefit question. In listing some of the arguments that could have been made by a Tax Protestor, but were not, the Supreme Court said that:

"We note again that no claim is made that the activity is not sufficiently connected to the State to justify a tax, or that the tax is not fairly related to benefits provided the taxpayer..." - Complete Auto Boy vs. Brady, 430 U.S. 274, at 287 (1976).

Incidentally, as a point of reference, the Constitution's Interstate Commerce Clause disables certain State Income Taxing schemes from taking effect, under some limited conditions. See United States Glue Company vs. Oak Creek, 247 U.S. 321 (1917), which discusses several such factual settings where challenged State Income Taxing schemes were either affirmed or annulled on questions that turned on the Commerce Clause. [return]

[21] "We have had frequent occasion to consider questions of state taxation in the light of the Federal Constitution, and the scope and limits of national interference are well settled. There is no general supervision on the part of the nation over state taxation, and, in respect to the latter, the state has, speaking generally, the freedom of a sovereign, both as to objects and methods." - Michigan Central Railroad vs. Powers, 201 U.S. 245, AT 292 (1905). [return]

[22] "... the `controlling question is whether the state has given anything for which it can ask return.' Since by `the practical operation of [the] tax the state has exerted its power in relation to opportunities which it has given, to protection which it has afforded, to benefits which it has conferred...' it `is free to pursue its own fiscal policies, unembarrassed by the Constitution...'" - Portland Cement vs. Minnesota, 358 U.S. 450, at 465 (1959). [return]

[23] "And we deem it clear, upon principles as well as authority, that... a State may impose general income taxes upon its own Citizens and residents whose persons are subject to its control..." - Shaffer vs. Carter, 252 U.S. 37, at 52 (1919). [return]

[24] Whether or not residents of a state are automatically classifiable as State Citizens varies based on several factors; sometimes these two words mean the same thing, and sometimes they do not. Although a light reading of the 14th Amendment would lead folks to believe that residents are Citizens of the state wherein they reside, there is a distinction in effect between "resident" and "Citizen":

"Of course the terms `resident' and `citizen' are not synonymous, and in some cases the distinction is important [like in] (LA Tourette vs Mcmaster, 248 U.S. 465, at 470 (1918))." - Travis vs. Yale & Towne, 252 U.S. 60, at 78 (1919).

For purposes of analyzing a taxation scheme under the Privileges and Immunities Clause of the 14th Amendment, the terms resident and Citizen are essentially interchangeable; see Austin vs. New Hampshire, 420 U.S. 656, footnote 8 (1974).

However unequal the Government benefit distribution skew is between these two classifications, important for the moment, for taxation purposes residents are equally taxable objects like Citizens. [return]

[25] There is a distinction between the termination of a contract, and the repudiation of contract. Repudiation is to reject, disclaim, or renounce a duty or obligation that is owed to another party -- since the retention of the benefits derived from the operation of the contract continues the life of the contract in effect. To repudiate a contract is to merely give advance notice to the other party that you intend to breach the contract for some reason [see UCC 2-708 "Seller's Damages for Non-acceptance or Repudiation" and 2-711 "Buyer's Remedies in General," see also Samuel Williston in Repudiation of Contracts, 14 Harvard Law Review 421 (1900).] In contrast to that, to Terminate a contract is to end and cease the existence of the contract altogether [see UCC 2-106 "Definitions: `Contract',... `Termination'"]. Under Termination, all rights, duties, and obligations arising between the parties cease altogether, and there are no lingering reciprocal expectations retained by either party. [return]

[26] And geography was very much disputed in 1959 when, as Governor, Nelson Rockefeller gave his taxing grab one more turn of the screws to Parties of the New York State Personal Income Tax -- as this time, Residents of New Jersey, who work in New York City and pay New York Income Taxes as the reciprocity for the use of the Commerce Jurisdiction of New York State, decided to take matters into their own hands. They persuaded U.S. Senator Clifford Case of New Jersey to introduce a proposed Constitutional amendment into the Congress in March of 1959 which would have prohibited the several States from taxing the income of non-Residents. Although Nelson Rockefeller's tax increase was the catalytic trigger for initiating this amendment, however, as is usually the case the truth itself is obscure and difficult to find, because during Hearings held in Congress, emphasis was shifted over to paint a larger regional picture of an "unfairness" taxation problem by pointing to the double taxation of New Jersey Residents both by New York and also by Pennsylvania for those who commuted into Philadelphia. During Senate Hearings, the question arose as to how to protect the Commonwealth of Pennsylvania and the State of New York from the prospective loss of revenue -- revenue that was generated from such non-Residents [certain people seemed very concerned that Nelson Rockefeller not be deprived of so much as one thin dime of tax money to spend]. Would there be any reciprocating quid pro quo that New Jersey would yield in exchange for financial benefits lost to New York State?

"The reciprocal exemption of New York residents from a New Jersey income tax on nonresidents working in New Jersey might well constitute sufficient quid pro quo." - Senator Clifford Case in Hearings Before... the Judiciary Committee of the United States Senate, page 17 ["Constitutional Amendment: Taxation By States of Nonresidents"], 86th Congress, First Session, April, 1959; acting on Senate Joint Resolutions 29 and 67 [GPO, Washington (1959)].

As we turn around from a juristic situs on political arguments made in Congress, over to the unbridled snortations disseminating outward from a Federal Judge's Courtroom, nothing changes either, as the Same Principle of Nature that Judges hold errant Tax Protestors to [that your expected quid pro quo reciprocity is mandatory when juristic benefits were accepted by you], also applies to nullify prospective opposition to political arguments. By Senator Case's identification in advance of the quid pro quo that New York State would be gaining if this amendment gets Ratified, the impending opposition of this amendment by New York State is placed into a known expected manageable mode -- a strategic model for handling grievances that Tax and Draft Protestors would be wise to consider adapting into their modus operandi of errant defiance. Through this Letter, I have identified certain key benefits that Federal Judges have their eyes fixated on when signing a Commitment Order to a Federal Penitentiary on Tax and Draft Protesting Cases. Your failure to nullify, in advance, the Principle of Benefits Accepted/Reciprocity Now Demanded in the arguments of your impending adversaries, will prove to be self-detrimental, as this Principle of Nature can and will make an appearance in any setting. And if you do win on some off-point technical grounds, your apparent victory will be carrying over with a lingering illicit savor. Secondary consequences will also be created in the wake of having deflected attention off to the side while the true reason for winning that particular battle remains obscured, and also by having been deprived of the important intellectual benefits associated with battles that are fought and won/lost on their merits. Failure to identify the true cause of a battle loss or win is to render the efforts expended on behalf of your battle largely naught, and leaves a person's judgment no better off coming out of the battle than they were when first going into it. [return]

[27] The power to tax, the power to throw benefits at folks and then demand, and get, financial reciprocity:

"... is an incident of sovereignty, and is co-existensive with that to which it is an incident. All subjects over which the sovereign power of a State extends, are objects of taxation; but those over which it does not extend, are, upon the soundest of principles, exempt from taxation." - M'Culloch vs. Maryland, 17 U.S. 316, at 429 (1819). [return]