(Last update: September 1, 1999)

STATUTES DEPENDENT UPON REGULATIONS

Many perceive that the requirement to "file" an individual federal income tax return is based upon 26 U.S.C. § 6012; however, this section relates solely to the "making" of a return and not its "filing," which is the issue in a willful failure to file tax returns prosecution. The requirement to "file" an individual federal income tax return is governed entirely by 26 U.S.C. §6091, which reads in pertinent part as follows:

"Section 6091. Place for filing returns or other documents.

"(a) General rule.--- When not otherwise provided by this title, the Secretary shall by regulations prescribe the place for the filing of any return, declaration, statement, or other document, or copies thereof, required by this title or by regulations.

"(b) Tax returns.--- In the case of returns of tax required under authority of part II of this subchapter -

"(i) Persons other than corporations.-

(A) General rule.- Except as provided in subparagraph (B), a return (other than a corporation return) shall be made to the Secretary-

(i) in the internal revenue district in which is located the legal residence or principal place of business of the person making the return, or

(ii) at the service center serving the internal revenue district referred to in clause (i),

"as the Secretary may by regulations designate."

The plain language of this governing section of the Code clearly discloses that its enforcement depends entirely upon the promulgation of regulations. Section 6091 depends for its validity and enforcement upon the promulgation of tax regulations and thus those regulations control entirely the duties to file returns, not the statute.

It is common for various Congressional acts to be entirely enforceable only through regulations. Any given act may simply authorize a defined federal official to perform certain acts in accordance with regulations he promulgates; until the regulations are implemented, the act in question might compel nothing. An example of such an act is the Bank Secrecy Act ("BSA") P.L.91-508, 84 Stat. 1114, the amended version of which is codified at 31 U.S.C. §§ 5311, et seq. Throughout this particular act, language such as "the Secretary may require," "the Secretary may by regulations require," "as the Secretary may require," repeatedly appears in the Act's sections up through §242. In California Bankers Assn. v. Shultz, 416 U.S. 21, 26, 94 S.Ct. 1494 (1974), the Court noted that the BSA entirely depended upon regulations:

"[W]e think it important to note that the Act's civil and criminal penalties attach only upon violation of regulations promulgated by the Secretary; if the Secretary were to do nothing, the Act itself would impose no penalties on anyone."
See also United States v. Reinis, 794 F.2d 506, 508 (9th Cir. 1986) (a person cannot be prosecuted for violating the currency reporting law unless he violates an implementing regulation); and United States v. Murphy, 809 F.2d 1427, 1430 (9th Cir. 1987) (the reporting act is not self-executing and can impose no reporting duties until implementing regulations have been promulgated).

In California Bankers, supra, the Supreme Court not only noted that the BSA depended entirely upon regulations, but that also the federal income tax laws were similarly drafted:

"The Internal Revenue Code, for example, contains a general authorization to the Secretary of the Treasury to prescribe by regulation records to be kept by both business and individual taxpayers, 26 U.S.C. § 6001, which has been implemented by the Secretary in various regulations," 416 U.S., at 45.
Here, §6091 likewise depends for its enforcement entirely upon the promulgation of regulations for this section. The section itself merely notes that "the Secretary shall by regulations prescribe the place for the filing of any return." An income tax return for an individual is to be filed in either an internal revenue district or a service center, "as the Secretary may by regulations designate." It cannot be denied that §6091 by its plain language depends entirely upon regulations for its implementation. Further, the case law so holds.

One of the earliest cases dealing with a statute dependent upon regulations was United States v. Eaton, 144 U.S. 677, 12 S.Ct. 764 (1892). Here, §5 of the act in question provided that oleomargarine manufacturers "shall keep such books, render such returns ... as the commissioner of internal revenue, with the approval of the secretary of the treasury, may, by regulation, require;" 144 U.S., at 683. In Eaton, the Court held, in essence, that the regulation in question was broader than its statutory authority and was thus invalid; nonetheless, it was obvious to the Court that regulations were essential to enforcement of the act.

Some of the most notorious Congressional acts delegating broad rule making authority were enacted during the Great Depression via the National Industrial Recovery Act, and the resulting litigation brought the same into issue. In Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241 (1935), at issue were "hot oil" regulations promulgated via §10(a) of the National Industrial Recovery Act, which authorized the President "to prescribe such rules and regulations as may be necessary to carry out the purposes" of the Act; 293 U.S., at 407. Finding that the President's rule making authority under this act amounted to an unconstitutional delegation of legislative power to the President, the regulations at issue were found to be "without constitutional authority;" 293 U.S., at 433. The National Industrial Recovery Act also authorized the President not only to promulgate "rules and regulations," it also authorized him to adopt entire "codes of fair competition." In both Schecter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837 (1935), and Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855 (1936), such "codes" were found unconstitutional. A reading of the National Industrial Recovery Act reveals that it was primarily enforceable only through such "rules, regulations and codes."

In Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660 (1944), and M. Kraus & Bros. v. United States, 327 U.S. 614, 66 S.Ct. 705 (1946), the price control laws at issue in these cases were dependent upon the promulgation of regulations. In Douglas v. Comm. of Internal Revenue, 322 U.S. 275, 64 S.Ct. 988 (1944), a statute dealing with income tax deductions contained the words "such reasonable allowance in all cases to be made under rules and regulations to be prescribed by the Commissioner, with the approval of the Secretary." Douglas was decided solely by interpretation and construction of the regulation at issue. In Comm. of Internal Revenue v. S. Texas Lumber Co., 333 U.S. 496, 503, 68 S.Ct. 695 (1948), at issue before the Court was the construction of a statute and regulation. Here, the Court found it essential to construe both the statute and regulation to decide the case:

"That the Commissioner was particularly intended by Congress to have broad rule-making power under the regulation was manifested by the first words in the new ... section which only permitted taxpayers to take advantage of it 'under regulations prescribed by the Commissioner with the approval of the Secretary.'"
See also Fratt v. Robinson, 203 F.2d 627 (9th Cir. 1953), a case involving a statute containing the language, "such rules and regulations as the Commissioner may prescribe."

In United States v. Mersky, 361 U.S. 431, 437-38, 80 S.Ct. 459 (1960), the Court had before it a statute which contained the words, "The Secretary of the Treasury may by regulations ..." Concerning this language, the Court stated:

"Here the statute is not complete by itself since it merely declares the range of its operation and leaves to its progeny the means to be utilized in the effectuation of its command .... Once promulgated, these regulations, called for by the statute itself, have the force of law, and violations thereof incur criminal prosecutions, just as if all the details had been incorporated into the congressional language. The result is that neither the statute nor the regulations are complete without the other, and only together do they have any force. In effect, therefore, the construction of one necessarily involves the construction of the other."
See also United States v. Wayte, 549 F.Supp. 1376, 1385 (C.D.Cal. 1982) ("the defendant's argument that the court should view the applicable statute, regulations and proclamation as one statutory scheme is well founded").

Here, §6091 is no different from the statute at issue in Mersky, supra. Twice within this section, Congress has directed the Secretary to define the duty of filing tax returns by means of regulations. Section 6091 "is not complete by itself since it merely declares the range of its operation and leaves to its [regulations] the means to be utilized in the effectuation of its command. The result is that neither the statute nor the regulations are complete without the other, and only together do they have any force." Thus, the duty to file a federal income tax return is not governed by statute; such duty only manifests itself via 26 C.F.R., §1.6091-2.

The conclusion that §6091 is entirely dependent upon regulations promulgated under its authority is buttressed by a review of other sections of the Internal Revenue Code. And, the principles enunciated above are directly relevant to these other sections of the Code which provide meaning to both §§ 6012 and 6091. For example, in California Bankers, supra, the Court noted that §6001 gave broad rule making authority to the Secretary, which is readily evident upon examination:

"Every person liable for any tax imposed by this title, or for the collection thereof, shall keep such records, render such statements, make such returns, and comply with such rules and regulations as the Secretary may from time to time prescribe."
Remarkably, the language of §6001 is very similar to the statute at issue in United States v. Eaton, supra, in which the Court found it absolutely essential to deal with the corresponding regulation to decide the case. As in Mersky, supra, §6001 is incapable of enforcement without there first being implementing regulations. Finally, as in California Bankers, supra, §6001 is not self-executing, but entirely depends upon the further promulgation of regulations by the Secretary. In short, the plain meaning of §6001 is that the Secretary is given the authority to delineate by regulations the duty to make and file returns, which duty arises only by such regulations. And this authority of the Secretary must be considered when construing the purported duties arising under §§ 6012 and 6091.

Section 6011 of the Code is very similar to §6001:

"When required by regulations prescribed by the Secretary any person made liable for any tax imposed by this title, or for the collection thereof, shall make a return or statement according to the forms and regulations prescribed by the Secretary. Every person required to make a return or statement shall include therein the information required by such forms and regulations."
Whereas §6001 commands "every person liable for any tax" to make returns via regulations prescribed by the Secretary, §6011 simply states that those who are "liable for any tax" shall make returns upon forms designated by the Secretary "and shall provide the information required by such forms." In reference to the making of returns, §6001 simply authorizes the Secretary to promulgate regulations in this respect, and, if the Secretary does so promulgate such regulations, then §6011 requires those liable for the tax to make such returns upon forms prescribed by the Secretary and designated in his regulations. It is quite evident from a combination of both §§ 6001 and 6011 that the duty to make returns is thus governed entirely by regulations.

With the authority granted to the Secretary via §§ 6001 and 6011 in mind, the meaning of §6012 of the Code becomes readily apparent. In Panama Refining Company, supra, the Court was confronted with an act of Congress which conveyed extremely broad rule making authority to the President. This Presidential authority was objectionable because it was unqualified and unrestrained; no policies were prescribed under which the exercise of such Presidential power was to be governed, and the act placed absolutely no prohibitions or restraints upon the exercise of such power. These features of the act, among others, were declared to be unlawful delegations of legislative power; see 293 U.S., at 415. It is the rule enunciated in Panama Refining Company which explains the reason for the existence of §6012 of the Code: it limits the otherwise very broad rule making authority of the Secretary under §§ 6001 and 6011.

Congress might have enacted in the Code only §§ 6001 and 6011 and left it at that, which would have meant that the Secretary's rule making power was limitless and unqualified. Under such circumstances, the Secretary could have required not only nonresident aliens and foreign corporations to make and file returns, he could have created classes such as "Alaskans living north of the Mason-Dixon line," as well as dogs, cats, cows, horses, sheep and political prisoners in Iraq. The purpose of §6012 is simply to define and limit the Secretary's otherwise broad rule making authority to the classes to which §6012 addresses itself: individuals, corporations, estates, trusts, estates or trusts with nonresident alien beneficiaries, political organizations, homeowners' associations, fiduciaries and receivers. Incidentally, the forms which the parties named in §6012 are required to "make" are not identified. Those forms as well as the information to be included on the forms are subject to the rule making authority of the Secretary as defined in §6011.

Not only is the Secretary's rule making authority limited by §6012, it is further limited by other following sections of the Code. The making of estate tax returns is governed by §6018, the making of gift tax returns is governed by §6019, the making of partnership tax returns is controlled by §6031; sections following these further prescribe other classes required to make returns. Thus, the power of the Secretary to define who or what classes are obligated to make returns is carefully circumscribed by statute to avoid constitutional issues regarding the Secretary's broad rule making authority.

The broad rule making authority of §§ 6001 and 6011 could encompass the power of the Secretary to issue rules requiring returns to be filed at whatever place he designated. If the Secretary's power in this respect were not limited by statute, he could issue rules which could in essence change the entire structure of government. The Secretary and the President could be members of one political party, and the Secretary could issue a rule that all members of Congress of another party had to file their tax returns with a space station in orbit around the earth. When the members of Congress to which such a rule would apply find it impossible to comply, they could all be indicted for tax evasion on April 16 and the structure of government would be radically changed as a consequence. This kind of broad rule making authority of unconstitutional dimensions is not found in the Code for very apparent reasons.

Pursuant to §7621 of the Code, the President is given the authority to create internal revenue districts, a power he also possessed under the 1939 Internal Revenue Code. As explained in Treasury Department Order 150-01 (51 Fed. Reg. 9571, 1986-1 C.B. 686), the President has delegated this authority to the Treasury Secretary, and T.D.O. 150-01 describes the boundaries of such various districts. Via §6091, Congress further declares that the Secretary's broad rule making authority under §§ 6001 and 6011, particularly that authority which would dictate the act of filing a tax return, is to be limited to either internal revenue districts or service centers, "as the Secretary may by regulations designate."

Based upon the authority of §6091, the Secretary of the Treasury has promulgated eight (8) different tax regulations to implement this statute, which are found at 26 C.F.R., §§ 1.6091-1, 1.6091-2, 1.6091-3, 1.6091-4, 20.6091-1, 25.6091-1, 31.6091-1 and 301.6091-1. Of these, only the regulation at §1.6091-2 relates to the duty of a domestic American citizen to file an individual federal income tax return.

The tax regulation at 26 C.F.R., §1.6091-2, provides in subparagraph (a) that income tax returns are to be filed with "the district director for an internal revenue district." But, this is a rule subject to an exception, and that exception appears within subparagraph (c). This latter provision declares that income tax returns shall be filed "with a service center" if instructions for the form in question so require.

The fact that 26 C.F.R., §1.6091-2, does indeed control the duty to file federal income tax returns is demonstrated by a variety of cases. In United States v. Calhoun, 566 F.2d 969, 973 (5th Cir. 1978), that court held as follows:

"The crime of failure to file an income tax return is committed in the judicial district in which the taxpayer is required to file."

"The general rule is that a taxpayer shall make his return 'to the Secretary or his delegate ... in the internal revenue district' of his 'legal residence' or at the designated service center for that district. 26 U.S.C., §§ 6091(b)(1)(A)(i), (ii)."

Other cases have likewise identified §6091 and its regulations as those governing the duty to file a tax return; see United States v. Griffin, 814 F.2d 806, 810 (1st Cir. 1987); United States v. Citron, 221 F.Supp. 454, 456 (S.D.N.Y. 1963); United States v. Gilkey, 362 F.Supp. 1069, 1071 (E.D.Pa. 1973); United States v. Ramantanin, 452 F.2d 670, 671 (4th Cir. 1971); United States v. Garman, 748 F.2d 218, 219 (4th Cir. 1984); United States v. Lawhon, 499 F.2d 352, 355 (5th Cir. 1974); United States v. Quimby, 636 F.2d 86, 90 (5th Cir. 1981); United States v. Rice, 659 F.2d 524, 526 (5th Cir. 1981); United States v. Lefkoff, 113 F.Supp. 551 (D.Tenn. 1953); United States v. Gorman, 393 F.2d 209, 213, 214 (7th Cir. 1968); United States v. Grabinski, 727 F.2d 681, 684 (8th Cir. 1984); United States v. Clinton, 574 F.2d 464, 465 (9th Cir. 1978); and United States v. Dawes, 874 F.2d 746, 750 (10th Cir. 1989). There is thus no question that this tax regulation plainly controls the issue of where a tax return must be filed.