Taxation, Conscience, and Action vs. Inaction

Scarberry, Mark Mark.Scarberry at
Fri Feb 6 12:09:46 PST 2009

We recently had a discussion in my jurisprudence class about the moral difference between doing an act and allowing it to happen. I know some people disagree, but I think there often is a real difference. In relation to paying taxes that support activities that a taxpayer finds morally or religiously reprehensible, I wonder whether it could make sense for the government to accommodate those concerns of conscience by setting up a kind of easy involuntary tax payment program. 
A taxpayer could inform the IRS that he or she declines to pay a portion of the tax that is due, in which case the taxpayer would be required to provide information on a bank account. The account could be a regular checking or savings account not specifically funded by the taxpayer for this purpose, but nevertheless on in which there are likely to be sufficient funds to cover the unpaid taxes. The IRS then would levy on that account, under a streamlined process that could be set up as part of the program, and collect the tax plus a fee or penalty (maybe 5% of the unpaid amount plus interest, say, from Jan. 1 of the tax year) to cover the cost of the program and to provide a disincentive for casual use of it. So long as the account held sufficient funds to cover the amount of the levy, there would be no additional fees or penalties. Alternatively, a taxpayer could be required to notify the IRS before the beginning of the taxable year that he or she intended to refuse to pay some portion of the income tax due, and the IRS could collect an estimated amount in advance from such a bank account.
I realize that as a practical matter this could be hard to coordinate with tax withholding, and I would not support a program that could not be used by the typical wage earner. But perhaps something could be worked out. (I suppose the whole tax withholding system could be seen as a kind of involuntary payment program, under which the employer withholds amounts based on information provided by the employee, with the result that perhaps the employee could be seen as not acting to pay the tax. Maybe most of us therefore already have the kind of program I'm suggesting!)
In any event, I wondered whether list members think that such a program would provide any real relief for taxpayers whose consciences are violated by paying taxes for programs that violate their moral or religious beliefs. Is the requirement of funding a bank account and providing information so that the IRS can levy any less of a burden on conscience than a requirement simply to pay the tax? Would a truly conscientious objector to paying taxes for such government activities violate his or her conscience by providing information about the account or by placing/leaving enough money in the account to cover the IRS levy? Or is it really different to have the IRS take the money from you (even if you obeyed the law by making it easy for the IRS to do so) rather than paying it yourself?
[To relate this to current political issues: Would a person be effectively disqualified from service as a government official in a new administration (e.g., secretary of Health and Human Services in a 2017 Bobby Jindal administration) if the person had suffered such a tax levy for refusing to pay taxes to support a prior administration's activities (e.g., massive federal funding of human fetal stem cell or chimera research under the Obama administration)?]
Mark S. Scarberry
Pepperdine Univ. School of Law
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