Our attention is focused on Subchapter F, "Procedure and Administration", containing sections 6001 through 7873. Section 6001 requires that the Secretary (of Treasury or his delegate), notify "any person, by notice served, or by regulations," that such person is required to keep records, make statements, or file returns with respect to any internal revenue tax.
The first problem stems from Congress’ use of the word, "may".
The second is the Secretary’s option as to method.
We’ll discuss these in that order.
There are more court decisions than it would be reasonable to include that have agreed with IRS' position that "may" is used in its permissive sense — rather than as mandatory — in section 6001. Even if I disagreed with them (I don’t), the courts have accepted this interpretation over and over, and over again. We have to live with it.
But the courts have accepted IRS', "permissive," argument in the context of Citizens making (what they believe is) the exact opposite argument: that, in 26 USC § 6001, "may", must be interpreted as mandatory. Not only are/were these Citizens wrong, they were drawn into an ambush.
Section 6001 of the Code, enacted by Congress on August 16, 1954, grants the Secretary (of the Treasury or his authorized delegate) discretion to decide, 'When…[notice is]…necessary," and then — if necessary — how the notice is to be given, but not whether or not to give it!
This is where the IRS nails the semantically challenged every time. Although the government attorney is saying that, "may" is - and has been found by courts to be - "permissive", the argument they're actually presenting is that, "The Secretary 'is permitted to' serve notice, but he doesn’t have to, and you are required whether he does or not." This is a potential interpretation, not permissive! The government's actual argument is as if, "The Secretary "might" serve notice (but he might not), and you are required whether he does or not."
THINK HARD about this. If, as the government uses it, "may" is interpreted as, "might", wouldn’t that make their, "you are required whether he does or not" argument ("or might not") mean, "may not?" And if, "may" means "The Secretary", "IS permitted"… wouldn’t, "may not", mean, "is NOT permitted?" That would be an absurdity.
Congress did not say, "The Secretary is permitted, or prohibited, as he may determine in his discretion…". Go read 26 USC § 6001 again.
— in absolute discretion — that you are to perform any of the specified acts, he is required to make a record of having made that determination.
— in absolute discretion — makes it a priori necessary to follow Due Process Of Law, and notify you in one of the two authorized ways.
It also requires the Secretary to make a record of having NOTIFIED you "by notice served, or by regulations."
In a case decided November 12, 2003 (about Social Security disability insurance benefits), Supreme Court Justice Antonin Scalia cited,
"the grammatical ‘rule of the last antecedent,’ under which a limiting clause or phrase should be read to modify only the noun or phrase that it immediately follows."BARNHART V. THOMAS, 540 U.S. 20 (2003) 294 F.3d 568, reversed2.
the Secretary is required to make a record of the determination.
Applying Scalia’s, "grammatical 'rule of the last antecedent,'" and (since April 6, 2020) Alito's " syntax… is an adjectival phrase" to section 6001 to
“Whenever in the judgment of the Secretary it is necessary, he may require any person, by notice served upon such person or by regulations, to make such returns, render such statements, or keep such records, as the Secretary deems sufficient…”the Secretary "…may require any person…"
"Whenever in the judgment of the Secretary it is necessary…",AND THE ONLY 2 WAYS TO DO THAT - in the words of the law - are
"…by notice served upon such person or by regulations…".
the Secretary, "in his judgment", determined, "it is necessary" IF HE NOTIFIED you "…by notice served…".
the Secretary, "in his judgment", determined NOTICE ("…to make such returns, render such statements, or keep such records…") "is necessary" by the fact that the Secretary — under authority of Internal Revenue Code Subchapter F, section 7805 ("needful rules and regulations") — prescribed a regulation for income tax under Subtitle A: regulation 26 CFR 1.6001-1!3.
The regulation prescribed by the Secretary to implement IRC § 6001 WITH RESPECT TO SUBTITLE A (income) TAX — 26 CFR 1.6001-1 — is PROOF that, "…in the judgment of the Secretary…" it is [was] "…necessary…" to, "…notify any person…" (including you) to make such returns, render such statements, or keep such records…".
1 If you wonder why Congress writes laws that are so confusing, the simplest answer is Congress Doesn't Write the Laws. I guarantee that the "House Office of the Legislative Counsel Guide to Legislative Drafting" will be very, VERY enlightening. The others are 1) that legislators aren't always attorneys (although too many are), and 2) every word in a law matters.
2 In a just decided case - BABB v. WILKIE, 589 US _ (2020) - (Slip Opinion, April 6, 2020 - Case No. 18–882), the majority decision written by Justice Alito (Justice Thomas, alne, dissented) refined the issue to one of syntax (described as a "grammatical arrangement of words" in a sentence), writing
First, “based on age” is an adjectival phrase modifying the noun “discrimination,” not the phrase “personnel actions.” Thus, age must be a but-for cause of discrimination but not the personnel action itself. Second, “free from any discrimination” is an adverbial phrase that modifies the verb “made” and describes how a personnel action must be “made,” namely, in a way that is not tainted by differential treatment based on age. Thus, the straightforward meaning of §633a(a)’s terms is that the statute does not require proof that an employment decision would have turned out differently if age had not been taken into account. Instead, if age is a factor in an employment decision, the statute has been violated.In simple terms, ANY phrase - like "shall be made free from any discrimination" - that modifies a preceding phrase - "All personnel actions affecting employees or applicants for employment who are at least 40 years of age" - whether grammatical or syntactical - APPLIES ONLY to the immediately preceding phrase.
"Except where such authority is expressly given by this title to any person other than an officer or employee of the Treasury Department, the Secretary shall (***THIS IS MANDATORY!***) prescribe all needful rules and regulations for the enforcement of this title…"
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