Involvement in many of these tax schemes may have required that your Client extol the virtues of this tax code wizardry. If your Client has been preaching this gospel, you can expect them to assure you that their efforts to protest the tax system, and discuss ways to avoid it, are protected under the First Amendment as "free speech." Such is not the case.

In the seminal case, Gordon Buttorff, an Iowa tax protestor, promoted this sort of scheme and was ultimately convicted of nine counts of aiding and abetting people to file false, or fraudulent, income tax returns in violation of Title 26 U.S.C. §7205 and Title 18 U.S.C. §2. Buttorff appealed his conviction claiming that the discussion of his views on income taxes were protected under the First Amendment. See United States v. Buttorff, 572 F.2d 619, 622-23 (8th Cir. 1978).

In affirming his conviction, the Eighth Circuit wrote:

Although the speeches here do not incite the type of imminent lawless activity referred to in criminal syndicalism cases, the defendants did go beyond mere advocacy of tax reform. They explained how to avoid withholding and their speeches and explanations incited several individuals to activity that violated federal law and had the potential of substantially hindering the administration of the revenue. This speech is not entitled to first amendment protection and ... was sufficient action to constitute aiding and abetting the filing of false or fraudulent withholding forms.

In February, 1978, Alton Moss delivered a radio talk show presentation advocating the avoidance of federal withholding tax. Three men, Gronewold, Sanne, and Vanosdall, heard the interview and realized that they were dealing with a true guru willing to share the "Grail." Gronewold taped a second presentation in March that Moss gave at a local hotel and played it for Sanne, Vanosdall, Lilienthal, and Spencer. Moss was ultimately convicted of five counts of aiding and abetting the filing of false withholding information. Like Buttorff, Moss appealed on the grounds that his speeches were First Amendment protected but, citing Buttorff, the Eighth Circuit rejected this argument. See United States v. Moss, 604 F.2d 569, 570 (8th Cir. 1979).

Similarly, other circuits have upheld convictions of tax avoidance seminar presenters under the federal conspiracy and mail fraud statutes. See United States v. Fleschner, 98 F.3d 155, 157 (4th Cir. 1996), upholding Fleschner's conspiracy conviction for conducting tax avoidance seminars at which he advised participants that wages were not income and that they should hide income by dealing only in cash.

See also United States v. Rowlee, 899 F.2d 1275, 1276-77 (2d Cir. 1990), upholding Rowlee's conviction for fourteen counts of conspiracy and six counts of mail fraud for his role in teaching tax avoidance seminars and urging clients to file suits and Freedom of Information Act requests against the IRS to waste the agency's time.

There is one significant case in which the Court ruled that tax protests were protected by the First Amendment. In United States v. Freeman, 761 F.2d 549 (9th Cir. 1985), the Court held that a First Amendment defense was applicable because the defendant, ". . . directed his comments at the unfairness of the tax laws generally, without soliciting or counseling a violation of the law in an immediate sense." Now, remind your Client that this is an Appellate case - Freeman was indicted and arrested. Ask your Client how much time they think Freeman spent in jail, and how much money he spent in litigation, to prove his point.

I welcome your comments, questions and suggestions.