Tax protester 861 argument

The 861 argument is a statutory argument used by tax protesters in the United States, which interprets a portion of the tax code as invalidating certain applications of income tax. The argument has uniformly been held by courts to be incorrect, and persons who have cited the argument as a basis for refusing to pay income taxes have been penalized, and in some cases jailed.

Internal Revenue Code section 861, entitled "Income from sources within the United States", is a provision of the Internal Revenue Code which delineates that some kinds of income shall be treated as income from sources within the United States, namely income of nonresident alien individuals, and certain foreign corporations, but it is not an exhaustive list of taxable income -- the definitions in the section apply only to that section. The language of Section 861 is occasionally cited by tax protesters who claim that the statute excludes some portion of the income of U.S. citizens and resident aliens from taxation.

Under the tax protesters' section 861 argument, only income derived from "taxable activities" listed in that section becomes "taxable income" (taxable "gross income" minus allowable deductions - 26 U.S.C. § 63). The list of taxable activities is located in Subchapter N and in Section 861 regulations. Proponents of this argument state that individuals with domestic income must go to the Section 861 regulations to determine if the activities that generate their income are taxable or not. Protesters state that regulation section 1.861-8T(d)(2)(iii) defines the taxable activities. The argument is that since the domestic activities of residents of the United States (Americans and resident aliens) are not shown to be taxable in that section, the domestic income derived from such activities does not become taxable "gross income" through the rest of the tax code.

Tax protesters argue that the Internal Revenue Service (IRS) is misapplying section 861 to them, citing the case of Gould v. Gould. The text of that case reads in part:

"In the interpretation of statutes levying taxes it is the established rule not to extend their provisions, by implication, beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out. In case of doubt they are construed most strongly against the government, and in favor of the citizen."

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