Cross References
• Small, 7th Cir., June 28, 2012

Some things you just can’t make up. The behavior of a particular tax protestor illustrates this point. Brian Small, who believes he is a nontaxable “sovereign citizen,” appealed his jury verdict finding him guilty of tax evasion and failing to file tax returns to the 7th Circuit Court of Appeals.

In 2003 and 2005, Small gave his employer documents resembling Form W-4 in which he claimed to be exempt from federal income taxes. For tax years 2003 through 2005, his employer did not withhold federal income tax from his wages, and Small did not file federal tax returns. He filed his 2006 return two years late after learning that he was being investigated by the IRS. Small failed to pay about $55,000 in federal income taxes. He eventually was charged with four counts each of tax evasion and failing to file tax returns.

Small, who insisted on representing himself at trial, stayed in the spectators’ section of the courtroom out of a belief that advancing to the defense table would give the District Court jurisdiction over him. Small described himself as the executor of an estate that he had established in his own name. According to Small, this estate was the party actually charged and could not be prosecuted without his written authority. Small declined to participate meaningfully in the proceedings and left the courtroom before closing arguments. The jury found him guilty on all counts, and the judge sentenced him to concurrent prison terms of 21 months and 12 months, respectively, on each of the tax evasion and failure-to-file counts.

On appeal, Small made the following claims, which the Circuit Court rejected:
• The District Court improperly asserted subject-matter jurisdiction over his case because the federal criminal jurisdiction statute was passed without a quorum in the House of Representatives and is therefore invalid.
• His conviction should be vacated because the prosecution failed to satisfy an unspecified statute requiring it to obtain approval from the Attorney General before prosecuting tax cases.
• There was a due-process violation when the District Court allowed the proceedings to continue upon his departure from the courtroom before the government’s closing argument.
• The District Court failed to comply with the Court Reporter Act by furnishing him with trial transcripts that were somehow incomplete.
• Paying federal income taxes is optional.
• Plus a number of arguments the Court said were frivolous that did not warrant further discussion.