Preface To Jury Instructions From
Vivian Kellem’s Tax Withholding Trial

In 1948, Vivien Kellems, businesswoman and strong Constitutionalist, quit withholding from the paychecks of the employees of her Connecticut based business.

The Federal government, without notice or due process, seized her corporate bank account for alleged taxes due. Ms. Kellems sued and won. The jury decided the government had to return the monies unlawfully seized from Ms. Kellems.

During this extraordinary journey, Ms. Kellems dared the President of the United States of America to make her an unpaid tax collector. She even demanded that the President indict her! The government did neither.

Attached is one of the jury charging documents from her trial, which began in 1950. We the People will soon post the entire trial transcript and legal briefs on our web site: www.givemeliberty.org.

Vivien Kellems was a woman far ahead of her time. She fully understood the Constitution and the intent of the Founding Fathers regarding taxation. Her amazing story is told in her own words in her book, "Toil, Taxes & Trouble."

The Internal Revenue Code reads at Section 26 USC Section 7202, "Willful failure to collect or pay over tax. Any person required under this title to collect, account for, and pay over any tax imposed by this title who willfully fails to collect or truthfully account for and pay over such tax shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000, or imprisoned not more than five years, or both, together with the costs of prosecution."

According to the United States Supreme Court, the standard for the statutory willfulness requirement is the "voluntary, intentional violation of a known legal duty."

In CHEEK v. UNITED STATES, 498 U.S. 192 (1991), the court said that even "objectively unreasonable" beliefs as to a legal duty to file could be a defense to the charge.

"Congress did not intend that a person, by reason of a bona fide misunderstanding as to his liability for the tax, as to his duty to make a return, or as to the adequacy of the records he maintained, should become a criminal by his mere failure to measure up to the prescribed standard of conduct." Id., at 396. ... the standard for the statutory willfulness requirement is the ‘voluntary, intentional violation of a known legal duty.'"

"It was therefore error to instruct the jury to disregard evidence of Cheek's understanding that, within the meaning of the tax laws, he was not a person required to file a return or to pay income taxes and that wages are not taxable income, as incredible as such misunderstandings of and beliefs about the law might be. Of course, the more unreasonable the asserted [498 U.S. 192, 204] beliefs or misunderstandings are, the more likely the jury will consider them to be nothing more than simple disagreement with known legal duties imposed by the tax laws, and will find that the Government has carried its burden of proving knowledge."

In short, in Cheek, the Supreme Court ruled that one's belief's -- no matter their content -- constitute a viable defense against tax crimes where "willful intent" is one of the elements of the crime.

Vivan Kellems knew the law and successfully defended both her beliefs and her constitutionally protected rights.

Click Here to Read the Charge to the Jury in Kellem’s trial.

Click Here to Learn More about Kellems or to order her book "Toil, Taxes, & Trouble"

Click Here to Hear Vivian Kellems in a half hour radio interview, circa 1950.