The Tax Protestor Doctrine

by Don Kostyu

An official IRS memorandum disclosed by the National Coalition of IRS Whistleblowers proved that as far back as 1973 the IRS has been waging a campaign to "educate" federal judges on the importance of prison sentences for tax protestors. Known as the "Croasmun Memorandum" the report emanated from Homer O. Croasmun, Regional IRS Commissioner, Western Region, to the participants in the Conference on the Tax Rebellion Movement.

The unethical and unlawful plan to influence federal judges completely undermines the Constitutional mandate of an impartial, independent judiciary.

The reason federal judges are appointed for life under Article III of the Constitution is to guarantee their independence from other branches of government -- even the IRS!

In most cases that may still hold true. But when a "Tax Protester" is hauled into the courts things change radically. Injustice becomes the order of the day as prosecutors, clerks, magistrates and judges team up in pursuit of a speedy conviction.

Unfortunately, as recent cases indicate, the "Tax Protestor Doctrine" is becoming firmly rooted in the federal judiciary as an acceptable practice to be exercised at the whim of the court.

Some examples of the "Tax Protestor Doctrine" at work are:

U.S. v. Frieda Grosshans, U.S. District Court, Eastern District (1986). During the course of the trial, Asst. U.S. Atty. Steven Hiyama repeatedly referred to Freida Grosshans as a "tax protestor". At sentencing, U.S. District Judge George Woods ordered defendant Grosshans, a 52 year-old grandmother, imprisoned in Wayne County Jail until space was available in a federal minimum security facility. Freida Grosshans spent over a month imprisoned under the worst conditions with hardened criminals. The same judge suspended the sentence of John Rye who was guilty of tax evasion on $1.3 million in income. Rye had to serve 5 months in a halfway house. Rye was not a "tax protestor", you see, he was merely a crook! Rye was a purposeful tax evader, a cheat, a thief. But Freida Grosshans did the unthinkable. She made a Constitutional challenge. She believed in the Constitution and her rights, and she questioned the IRS. But she couldn't tell the jury about that because of a gag order which the courts routinely apply as part of the Tax Protestor Doctrine", known as a motion in limne.

Judge Woods sentenced Freida Grosshans to 5 years and she is currently incarcerated in a federal prison camp in Texas.

Another recent case, U.S. v. Arthur W. Morris, U.S. District Court, Eastern District of Michigan (1987), saw another flagrant use of the "Tax Protestor Doctrine" when, at sentencing, U.S. District Judge Avern Cohn compared defendant Morris with those who sell information to the Soviet Union. Equating Morris with treason and espionage, Cohn invoked the "Tax Protestor Doctrine" to toss out sentencing guidelines and gave the maximum sentence of 3 years and $30,000 to Morris, a first time misdemeanor offender. Morris was denied bond pending appeal and is incarcerated in a federal prison in Indiana.

The case of U.S. v. Kevin Krzyske, No. 95-1760/1799, U.S. District Court, Ann Arbor, is an example of the extreme injustice which can be accomplished under the "Tax Protestor Doctrine".

During pre-trial hearing, Asst. U.S. Atty. Karen Reynolds repeatedly branded Kevin Krzyske as a "tax protestor", notifying the court that the "Tax Protestor Doctrine" could be applied throughout the proceedings. And was it ever.

Krzyske's pre-trial motions were routinely denied by Magistrate Steven Pepe, at trial. Judge Joinder denied Krzyske the assistance of counsel and withheld vital information which was requested by the jury.

Charged with 10 counts of various tax charges, Krzyske successfully defended against 5 counts and was convicted of 5 counts. Krzyske appealed the convictions.

Once again the "Tax Protestor Doctrine" came into play as Judge Charles Joiner forced Krzyske's needless and unjust imprisonment by setting inappropriate conditions on his remaining free on bond. As a result of the untenable conditions set by Joiner, Krzyske needlessly served over a year in a federal prison camp in Minnesota.

We can confidently say Joiner forced Krzyske's wrongful imprisonment because the U.S. Court of Appeals recently overruled Joiner's conditions and ordered Krzyske's release.

The Tax Protestor Doctrine was invoked to cover up an unlawful arrest in the case of U.S. v. Franklin, U.S. District Court, Eastern District of Michigan (1987). The defendant was arrested on a defective warrant which was not supported by a sworn oath of probable cause. This detail was brushed aside at the arraignment when Magistrate Lynn V. Hooe incredibly, inquired from the bench if this was a "tax protestor case". Hooe silenced the Defendant and refused to hear any objections to the unlawful arrest warrant. Franklin was not allowed to make a record, a plea of not guilty was entered over his objection, and he was bound over for trial.

By invocation of the Tax Protestor Doctrine a federal Magistrate ignored an obvious unlawful arrest, suspended the Court Rules, and abrogated the Fourth Amendment of the U.S. Constitution. Also, this hearing marked a new and particularly repugnant trend, being it was raised by the Court without the prompting of government prosecutors. Lynn V. Hooe, a supposedly "neutral and detached" Magistrate, took it upon himself to brand the defendant a "tax protestor" and arraigned Franklin on the unlawful arrest warrant.

Hooe's oath to uphold the U.S. Constitution apparently doesn't apply to defendants he brands as "tax protestors". (It can be argued that Franklin's [not?] guilty plea necessarily included a plea of guilty to being a "tax protestor". But even so Hooe's abrogation of the Constitution is inexcusable.)

These are not isolated cases. Far from it. There are more, many more. The "Tax Protestor Doctrine" is becoming more widely used with each passing day.

The "Tax Protestor Doctrine" is by no means unique to criminal tax cases, but is used to routinely deny due process in civil cases where "tax protestors" are involved. Where plaintiffs in civil actions are labeled as "tax protestors" by government attorneys, the "Doctrine" is regularly invoked to dismiss their cases without regard to the issues raised. After all, if "tax protestors" have no rights, how could their rights be violated?

Case dismissed!

[Reprinted from `CBA Bulletin', Aug. 1988]