SOURCE:  Great IRS Hoax, section 3.7

"An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed."
[Norton v. Shelby County, 118 US 425 (1885)]

The precedence and hierarchy of law, like the hierarchy of sovereignty described in section 4.1 of the Great IRS Hoax on Natural Order,  follows the sequence that it is created.  

1. Where there are conflicts of law, the U.S. Constitution is the Supreme Law of the Land because it was created first by the sovereign people.  It says so right in the document itself.

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." 
[Article VI, United States Constitution]

2. The Statutes at Large (S.A.L.) have the next highest precedence, because they are created by Congress from the authority derived from the U.S. Constitution.  

3. Next comes the U.S. Code, which  implements the Statutes at Large.  Some titles are enacted into positive law while others, such as the Internal Revenue Code, Title 26, are not.  Titles of the code that are not enacted into positive law are only prima facie evidence of law that can be rebutted using the Statutes At Large from which they are derived.

4. The U.S. Code then takes precedence over the Code of Federal Regulations (CFR), which are written by agencies in the Executive Branch to put the U.S. Code into force.

5. The Code of Federal Regulations (CFR) then takes precedence over every IRS publication. IRS publications are not law, do not confer rights, and people who use them as a basis for belief can be fined and sanctioned by the courts.  Click here for more details.

Understanding this hierarchy is very important when one considers the definitions of terms.  Generally, terms used throughout the CFR's and IRS publications are derived from the U.S. Codes, which in turn are derived from the Statutes at Large.  Federal courts will, upon occasion, hold that regulations which appear in the Code of Federal Regulations are invalid because they conflict with either the U.S. Codes or the Statutes at Large that they derive from.  Below is a tabular summary of what we just explained to help you visualize what we mean.  The items below are in precedence order, where the lower numbered items appearing first are of higher precedence than later or higher numbered items:

Table 3-5:  Precedence of laws and regulations

NOTES:

1.   Only have the force of law if enacted into positive law.  The Internal Revenue Code is not enacted into positive law, and therefore it is only "prima facie evidence" of law.  The Statutes at Large from which the I.R.C. is written are the only real "law" you can cite as an authority or evidence in tax litigation.

2.   Only have the force of law if published and promulgated by the Secretary of the Treasury in the Federal Register in accordance with the Administrative Procedures Act, 5 U.S.C. §553.  All regulations promulgated in the Federal Register are “legislative regulations”.

3.  The federal Statutes at Large are not available online from the government for any year after 1874.  Our link above to the Statutes at Large is for the period 1789-1873.

4.   The internal procedures of the federal agency MUST be followed in any agency action that adversely affects the rights of individuals.  See Morton v. Ruiz, shown below.  Consequently, all enforcement actions attempted by the IRS must be in strict accordance with the Internal Revenue Manual and part 601 of 26 CFR, or the revenue agents can be held personally liable for deprivations of rights under 42 U.S.C. §1983.

“Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures. This is so even where the internal procedures are possibly more rigorous than otherwise would be required. Service v. Dulles, 354 U.S. 363, 388 (1957); Vitarelli v. Seaton, 359 U.S. 535, 539 -540 (1959). The BIA, by its Manual, has declared that all directives that "inform the public of privileges and benefits available" and of "eligibility requirements" are among those to be published. The requirement that, in order to receive general assistance, an Indian must reside directly "on" a reservation is clearly an important substantive policy that fits within this class of directives. Before the BIA may extinguish the entitlement of these otherwise eligible beneficiaries, it must comply, at a minimum, with its own internal procedures.”

[Morton v. Ruiz, 415 U.S. 199, 94 S.Ct. 1055, 39 L.Ed.2d 270 (1974)]

5.   The IRS Internal Revenue Manual, in section 4.10.7.2.8 indicates that all IRS publications, and by implication all their forms as well, "may not be cited to sustain a position".  You will note that several documents fall in this category, including the IRM itself, IRS publications, and all of their forms.

Internal Revenue Manual

4.10.7.2.8  (05-14-1999)

IRS Publications

IRS Publications, issued by the Headquarters Office, explain the law in plain language for taxpayers and their advisors. They typically highlight changes in the law, provide examples illustrating Service positions, and include worksheets. Publications are nonbinding on the Service and do not necessarily cover all positions for a given issue. While a good source of general information, publications should not be cited to sustain a position.

Most of the definitions for income taxes come from 26 U.S.C Sections 3401 and 7701, to be precise, but guess what, you won't find pointers in the CFR's or IRS publications back to these original and "foundational" definitions in the U.S. Code.  The terms "employer" and "employee" have a much more restrictive meaning in 26 U.S.C. Secs. 3401 and 7701 than they do in the CFR's or the IRS publications.  Some definitions, like that for "withholding agent" only appear in the 26 U.S. Code and not in the 26 CFR.  We assume this is the case in order to make the CFR's more confusing for IRS personnel as a way to encourage them to misinterpret the tax code in a manner that advantages the government financially.  Also, if the IRS doesn't define their terms, then the concept of "willfulness" as it relates to violating Citizen's rights by wrongfully taking more taxes than is owed becomes less threatening for IRS agents.  They can just "claim ignorance" when prosecuted for malfeasance, which is something we citizens could never do as it relates to paying our taxes!  This devious tactic is called “plausible deniability”.

If you would like to know where you can view any of the above legal reference resources, click here to see our Legal Research Resources page.

If you would like to know more about which of the above sources of law are useful as evidence in a court of law, see the memorandum below:

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