Originally Posted by David Merrill
That is Exactly the point.
How you identify yourself is how you get caught up in their jurisdiction.
It is the Presumption of law.
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Notice how the presumption has shifted. Contrary to the regulations at 26 CFR 1.871-4 (quoted above), employers are told by the IRS to make the opposite "presumption" about the residence of their employees, even if they are not true "employees" as that term is defined in the IRC. If individuals have W-4 and W-2 forms, the presumption is that they were either required to sign these forms, or they have made elections to be treated as residents. Recall that the instructions for Form 1040NR describe the "election to be taxed as a resident alien". This is accomplished by filing an income tax return on Form 1040 or 1040A, and attaching a statement confirming the "election".
An extremely subtle indicator of one's status is the perjury oath which is found on IRS forms. Under Title 28 of the U.S. Code, Section 1746, there are two different perjury oaths to which penalties attach: one within the United States**, and one without the United States** (see Appendix R for the precise wording of 28 U.S.C. 1746). If an oath is executed without the United States**, it reads as follows:
I declare ... under the laws of the United States of America that the foregoing is true and correct.
[emphasis added]
If an oath is executed within the United States**, it reads as follows:
I declare ... that the foregoing is true and correct.
Thus, your signature under the latter oath can be presumed to mean that you are already subject to the jurisdiction of the United States**. This latter oath is the one found on IRS Form 1040.
Federal courts now appear to be proceeding on the basis of the presumption that we are all "citizens of the United States**" because the courts have shifted onto defendants the burden of proving that they are not "citizens of the United States**". Despite the obvious logical problem that arises from trying to prove a negative, the United States District Court in Delaware ruled as follows when it granted an IRS petition to enforce a summons:
Defendant's protestations to effect that he derived no benefit from United States government had no bearing on his legal obligation to pay income taxes; unless he could establish that he was not a citizen of the United States, IRS possessed authority to attempt to determine his federal tax liability. U.S.C.A. Const. Art. 1, Sec. 8, Cl. 1; Amend. 16; 26 U.S.C.A. Sec. 1. [!!]
[United States v. Slater, 545 F.Supp. 179 (1982)]
[emphasis added]
It should be clear by now that the IRS may well be making presumptions about your status which are, in fact, not correct. If an original presumption of nonresidence has been rebutted, for example, because a nonresident alien filed one or more 1040 forms in the past, the filed forms do not cast the situation into concrete. The IRS is entitled to formulate a presumption from these filed forms, but this presumption is also rebuttable. If you filed under the mistaken belief that you were required to file, that mistaken belief, in and of itself, does not suddenly turn you into a person who is required to file. Tax liability is not a matter of belief; it is a matter that arises from status and jurisdiction.
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continued below or read the entire document here:
http://www.supremelaw.org/fedzone11/htm/chapter9.htm
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