Commissioner of Internal Revenue
1111 Constitution Avenue, N.W.
Washington, D. C. 20224
Dear Mrs. Richardson,
Many years ago, I tried to find within the Internal Revenue
Code the section which created your agency, the Internal Revenue
Service, but I was unable to find it. I then decided to locate
other sources of information regarding how the Internal Revenue
Service was established and what I fund was nothing short of
amazing.
In 1972, an Internal Revenue Manual 1100 was published in both
the Federal Register and Cumulative Bulletin; see 37. Reg. 20960,
1972-2 Cum. Bul. 836, a copy of which is attached for your
convenience. On the very first page of this statement published in
the Bulletin, the following admission was made:
"(3) By common parlace [sic] and understanding of the time, an
office of the importance of the Office of Commissioner of
Internal Revenue was a bureau. The Secretary of the Treasury
in his report at the close of the calendar year 1862 stated
that `The Bureau of Internal Revenue has been organized under
the Act of the last session...' Also it can be seen that
Congress had intended to establish a Bureau of Internal
Revenue, or thought they had, from the act of March 3, 1863, in
which provision was made for the President to appoint with
senate confirmation a Deputy Commissioner of Internal Revenue
`who shall be charged with such duties in the bureau of
internal revenue as may be prescribed by the Secretary of the
Treasury, or as may be required by law, and who shall act as
Commissioner of internal revenue in the absence of that
officer, and exercise the privilege of franking all letters and
documents pertaining to the office of internal revenue.' In
other words, `the office of internal revenue' was `the bureau
of internal revenue,' and the act of July 1, 1862, is the
organic act of today's Internal Revenue Service."
This statement, which again appears in a similar publication
appearing at 39 Fed. Reg. 11572, 1974-1 Cum. Bul. 440, as well as
the current IRM 1100, essentially admits that Congress never created
either the Bureau of Internal Revenue or the Internal Revenue
Service. To conclude that "Congress thought it had created this
agency" is an admission that even the government itself cannot even
find anything which created either agency. The only office created
by the act of July 1, 1862, was the Office of the commissioner;
nether the bureau nor the Service was actually created by any of
these acts.
I have no doubt that when employees of the IRS were researching
its origins so that this statement could be included within IRM
1100, those employees must have performed develop regarding
precisely how the IRS came into being. But besides the problem that
these acts simply did not create either the Bureau or the IRS is the
fact that these acts were repealed by the adoption of the Revised
Statutes of 1873. Therefore, it would appear that your agency has
never been created by any act of Congress, and this is a serious
flaw.
At the state level, it is a well acknowledged rule that a duly
constituted office of state government must be created either by the
constitution itself or by some legislative act; see Patton v. Bd. of
Health, 127 Cal. 388, 393, 59 P. 702, 704 (1899)("One of the
requisites is that the office must be created by the constitution of
the state or it must be authorized by some statute"); First Nat.
Bank of Columbus v. State, 80 Neb. 597, 114 N.W. 772, 773 (1908);
State ex rel. Peyton v. Cunningham, 39 Mont. 197, 103 P. 497, 498
(1909); State ex rel. Stage v. Mackie, 82 Conn. 398, 74 A. 759, 761
(1909); State ex rel. Key v. Bond, 94 W. Va. 255, 118 S.E. 276, 279
(1923)("a position is a public office when it is created by law");
Coyne v. State, 22 Ohio App. 462, 153 N.E. 876, 877 (1926)("Unless
the office existed there could be no officer either de facto or de
jure. A de facto officer is one invested with an office; but if
there is no office with which to invest one, there can be no
officer. An office may exist only by duly constituted law"); State
v. Quinn, 35 N.M. 62, 290 P. 786, 787 (1930); Turner v. State, 226
Ala. 269, 146 So. 601, 602 (1933); Oklahoma City v. Century
Indemnity Co., 178 Okl. 212, 62 P.2d. 94, 97 (1936); State ex rel.
Nagle v. Kelsey, 102 Mont. 8, 55 P.2d. 685, 689 (1936); Stapleton v.
Frohmiller, 53 Ariz. 11, 85 P.2d. 49, 51 (1938); Buchheltz v. Hill,
178 Md. 280, 13 AA.2d 348, 350 (1940); Industrial Comm. v. Arizona
State Highway Comm., 61 Ariz. 59, 145 P.2d 846, 849 (1943); State ex
rel. Brown v. Blew, 20 Wash.2d. 47, 145 P.2d 554, 556 (1944); Martin
v. Smith, 239 Wis. 314, 1 N.W.2d 163, 172 (1941); Taylor v.
Commonwealth, 305 Ky. 75, 202 S.W.2d. 992, 994 (1947); State ex rel.
Hamblen v. Yelle, 29 Wash.2d 68, 185 P.2d. 723, 728 (1947); Morris
v. Peters, 203 Ga. 350, 46 S.E.2d. 729 (1948); Weaver v. North
Bergen Tp., 10 N.J. Super. 96 A.2d 701 (1950); Tomarls v. State, 71
Ariz. 147, 224 P.2d. 209, 211 (1950); Pollack v. Montoya, 55 N.M.
390, 234 P.2d. 336, 338 (1951); Schaefar v. Superior Court In for
Santa Barbara County, 248 P.2d. 450, 453 (Cal.App. 1952; Brusnigham
v. State, 86 Ga.App. 340, 71 S.E.2d. 698, 703 (1952); State ex rel.
Mathews v. Murray, 258 P. 982, 984 (New. 1953); Dosker v. Andrus,
342 Mich. 548, 70 N.W.2d 241, 245 (1955); Hetrich ...County Comm. of
Anne Arundel County, 222 Md. 304, 159 A.2d 642, 643 (1960); Melland
v. Cody, 359 Mich. 78, 101 N.W.2d. 336, 341 (1960); Jones v. Mills,
216 Ga. 616, 118 S.E.2d. 484, 485 (1961); State v. Hord, 7 264 N.C.
149, 141 S.E.2d 241, 245 (1965); Planning Bd. Of Tp. Of West Milford
v. Tp. Council of Tp. Of West Milford, 123 N.J.Super. 135, 301 A.2d
781, 784 (1973); Vander Linden v. Crews, 205 N.W.2d 686, 688 (Iows
1973); Kirk v. Flournay, 35 Cal.App. 3d 553, 111 Cal. Rptr. 674, 675
(1974); Wargo v. Industrial Comm, 58 111.2d 234, 317 N.E.2d 519, 521
(1974); State v. Balley, 220 S.E.2d 432, 435 (W.Va. 1975); Leek v.
Theis, 217 Kan. 784, 539 P.2d 304, 323 (1975); Midwest Television,
Inc. V. Champaign-Urbana Communication, Inc., 37 111.App.3d 926, 347
N.E.2d 34, 38 (1976); and State v. Pinckney, 376 N.W.2d 433, 436
(Iowa 1979).
This same rule applies at the federal level; see United States
v. Germaine, 99 U.S. 508 (1879); Norton v. Shelby County, 118 U.S.
425, 441 6 S.Ct. 1121 (1886)("there can be no office, either de jure
or de facto, if there be no office to fill"); United States v.
Mouat, 124 U.S. 303, 8 S.Ct 505 (1888); United States v. Smith, 124
U.S. 525, 8 S.Ct. 595 (1888); Glavey v. United States, 182 U.S. 595,
607, 21 S.Ct. 891 (1901)("The law creates the office, prescribes its
duties"); Cochnower v. United States, 248 U.S. 405, 407, 39 S.Ct.
137 (1919)("Primarily we may say that the creation of offices and
the assignment of their compensation is a legislative function...
And we think the delegation of such function and the extent of its
delegation must have clear expression or implication"); Burnap v.
United States, 252 U.S. 512, 516, 40 S.Ct. 374, 376 (1920); Metcalf
& Eddy v. Mitchell, 269 U.S. 514, 46 S.Ct. 172, 113 (1926); N.L.R.B.
v. Coca-Cola Bottling Co. Of Louisville, 350 U.S. 264, 269, 76 S.Ct.
383 (1956)(" Officers' normally means those who hold defined
offices. It does not mean the boys in the back room or other
agencies of invisible government, whether in politics or in the
trade-union movement"); Crowley v. Southern Ry. Co., 139 F. 851, 853
(5th Cir. 1905); Adams v. Murphy, 165 F. 304 (8th Cir. 1908); Scully
v. United States, 193 f. 185, 187 (D.Nev. 1910)("There can be no
offices of the United States, strictly speaking, except those which
are created by the Constitution itself, or by an act of Congress");
Commissioner v. Harlan, 80 F.2d 660, 662 (9th Cir. 1935): Varden v.
Ridlings, 20 F.Supp. 495 (E.D. Ky. 1937); Annonl v. Blas Nadal's
Heirs, 94 F.2d 513, 515 (1st Cir. 1938); and Pope v. Commissioner,
138 F.2d 1006, 1009 (6th Cir. 1943).
Since I have reached the conclusion that the IRS has never been
created by Congress, I am asking you to provide to me the captation
of any statute which really did create the IRS. Since this is a
question of profound national importance, I request that you provide
an answer to me within 20 days. Failing a response within that time
period, I shall conclude that you cannot find any such statute and
shall act accordingly.
Your Truly,