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Does 861 "Apply?"

(originally launched into cyberspace on 02/11/2003)

Dear List Subscriber,

I thought I'd write a note concerning clarity of thought. Lawyer-scribbles
(a.k.a. "legalese") are a paradox. On the one hand, they are designed to be
more specific and precise than common speech. On the other hand, when they
get complicated, they become considerably LESS specific and precise than the
average town drunk.

Logic, math and science usually deal in nice, clean SPECIFICS. "What does 2
plus 3 equal?" There isn't much open to misunderstanding in that question,
and the answer isn't debatable. That is how legalese is SUPPOSED to be. A
law should specifically and clearly describe what or who is subject to the
law, what is required, and what the consequences are of failure to comply.
And most laws do that. In fact, they are so precise that they often look
rather silly. For example, in ENGLISH we would say "drive on the right side
of the road." In legalese, they say this (this is from the Texas statutes,
in case you care):


§ 545.051. Driving on Right Side of Roadway
(a) An operator on a roadway of sufficient width shall drive on the right
half of the roadway, unless:
(1) the operator is passing another vehicle;
(2) an obstruction necessitates moving the vehicle left of the center of the
roadway and the operator yields the right-of-way to a vehicle that:
(A) is moving in the proper direction on the unobstructed portion of the
roadway; and
(B) is an immediate hazard;
(3) the operator is on a roadway divided into three marked lanes for
traffic; or
(4) the operator is on a roadway restricted to one-way traffic.
(b) An operator of a vehicle on a roadway moving more slowly than the normal
speed of other vehicles at the time and place under the existing conditions
shall drive in the right-hand lane available for vehicles, or as close as
practicable to the right-hand curb or edge of the roadway, unless the
operator is:
(1) passing another vehicle; or
(2) preparing for a left turn at an intersection or into a private road or
(c) An operator on a roadway having four or more lanes for moving vehicles
and providing for two-way movement of vehicles may not drive left of the
center line of the roadway except:
(1) as authorized by an official traffic-control device designating a
specified lane to the left side of the center of the roadway for use by a
vehicle not otherwise permitted to use the lane;
(2) under the conditions described by Subsection (a)(2); or
(3) in crossing the center line to make a left turn into or out of an alley,
private road, or driveway.


Was that really all necessary? Well, sort of. The law must be SPECIFIC.
If the law just said "drive on the right side of the road," that would make
it illegal to EVER pass anyone, or drive around a broken-down car, etc. Of
course, common sense says that the general rule wouldn't apply in those
cases, but the law can't rely on "ya know" or "somethin' like that." (If it
did, the law would be unknowable.)

Legalese then becomes more like mathematics than informal chatting. While
there are invariably cases when courts have to look back on "congressional
intent," because the feds DIDN'T make it specific enough, ideally the law
would cover every possible scenario and detail.

To understand the law, we must have precision of thought. Like science and
math, the law is supposed to precisely express what it means. (Again, when
lawyers overly complicate things, or even INTENTIONALLY make things
confusing, that falls apart.)

For example, there is a portion of Title 26 that makes requirements
regarding machine guns, short-barrelled shotguns, bombs, and a few other
things. The requirements speak of what must be done with every "firearm,"
but ANOTHER section (5845) gives a very restrictive definition of what
"firearm" means for purposes of that part of the law. (The definitions, as
gun manufacturers and ATF agents know, does NOT include common revolvers,
rifles, handguns, etc.) With that in mind, let's try this question:

"I have .38 snub-nosed revolver. Does Section 5845 apply to my revolver?"

Yes. Um... no. Well, sort of.
The QUESTION is not precise enough.

If you didn't look at 5845, you'd assume your revolver is a "firearm" (since
it obviously fits within the common usage of that term). If you answer "NO,
that section doesn't apply to your firearm," it would seem logical to IGNORE
that section altogether. If you did, you'd probably assume that your
revolver is a "firearm" for purposes of that law (when it is not). But if
you argue "YES, that section applies to your firearm," that could mean that
you are saying that the definition INCLUDES your revolver, when it actually

This is the type of thing that requires clarity of thought. If the wrong
question is asked, the answer is useless (because it could mean two
diametrically opposed things). Here is the CORRECT way to find out what
that law requires:

Q: "Is 5845 the section I should use to determine what counts as a firearm
for purposes of that law?"
A: "Yes."
Q: "Is my revolver shown to be a firearm by that section?"
A: "No."

Therefore, the revolver is not a "firearm" for purposes of that law.

That is why I ask the questions the way I do about 861. The question "does
861 apply to me" can mean two things, making any answer to that question
worthless. Here is the trap:

"Yes, 861 applies to me."
"Ah ha! So you ADMIT that it applies to your income!"


"No, 861 doesn't apply to me."
"Ah ha! So you ADMIT that you shouldn't be looking there!"

The question is a trap, just like "did you stop beating your wife yet?" I
don't think everyone who asks it actually MEANS it to be a trap, but it is a
question based on unclear thought, which only muddles things, whether
intentionally or not. But often I DO think the status quo proponents use
the muddled-thought trickery on purpose. How often have you seen this?:

"Section 861 and following are only about people engaged in certain kinds of
international commerce [which in one sense is entirely true]... and
therefore YOU shouldn't be looking there."

See the nifty little bait-and-switch? It's subtle, and it comes from
imprecise thinking. That is why THIS is how the question must be asked:

Q: "Does 861 and its regs describe when domestic income is taxable?"
A: "Yes."
Q: "Do those sections show MY domestic income to be taxable?"
A: "No."

Therefore, my domestic income is not taxable.

This type of clarity of thought is helpful to the "thinker" in ANY subject.
Make sure you are clear about what YOU are saying, and say it with words
that express what you mean, and cannot have alternate meanings. This is a
good idea even when the listener is TRYING to understand what you mean, but
it is especially true when you are up against dishonest lawyers who are
TRYING to make you trip over imprecise thought.

Here is another example, and this is probably the IRS lawyers' favorite
logical tap-dance: "Section 861 does not exclude the domestic income of U.S.
citizens from taxation." Guess what... that is TRUE, at least in one sense.
In fact, it could even be said of Section 861 AND its regulations (though
the IRS form letters just say it about the statutes). Show me where the
words of those sections say that your income is exempt. You can't, because
it's not there. Many of you can show me where it is logically IMPLIED, and
where the legal meaning shows that it is excluded, but it does NOT
specifically say that it is excluded.

Before any status quo proponents yell "AH HA!" let me give another analogy
to spoil your fun. Show me which words in Section 5845 EXCLUDE a .38
revolver from the definition of "firearm." You can't, because they aren't
there. For the most part, the section doesn't say what is NOT considered a
"firearm"; they only say what IS considered a firearm. In doing so, they
prove that a .38 is NOT a "firearm" for purposes of that law, without
specifically SAYING that in those words.

Likewise, by describing which domestic income IS taxable, the regulations
under 861 legally prove that most of our income is NOT taxable, but nowhere
does it come out and say "the domestic income of most Americans is exempt
from tax."

This may seem like nothing more than semantic games, and it pretty much IS
just that. But those are the games that the Treasury lawyers have been
playing for 80+ YEARS, and they get $1,000,000,000,000 a year for their
efforts. So don't downplay the importance of being PRECISE. It takes more
effort than the "ya know" sort of talk, but it is worth it. Many of you
have seen the status quo proponents do a half-decent spin routine monologue,
but then when faced with clearly-defined SPECIFICS, their stories fall apart
entirely. (David Cay Johnston and Dan Evans come to mind.)

The question is this: Do you intend to let the government lawyers tap-dance,
spin and obfuscate their way into stealing a trillion dollars a year from
your fellow Americans? Or do you want to be able to out-spin them?


Larken Rose
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