PROOF OF FACTS: Why it’s impossible and unreasonable to expect that you have the burden of proving a negative

By ftsig-admin | April 23, 2025

EDITORIAL:

The tax system is engineered to make it difficult to avoid paying taxes by imposing the burden of proof upon the “Taxpayer” to prove a negative. Here are a few important examples where this tactic is used and there are many others.

  1. Proving that you are a “nonresident alien” requires you to prove a NEGATIVE, which is that you are NOT a “citizen or resident of the United States” as it is defined in 26 U.S.C. §7701(b)(1)(B). If you merely FILE a 1040-NR or a W-8, you CREATE such proof and shift the burden of proof to the government to prove that you are NOT a “nonresident alien”.
  2. Proving that you DID NOT receive consideration that you have to pay tax to compensate the government for. This happens in cases where the court PRESUMES that the income tax is “quasi-contractual”. The burden of proving the NON-EXISTENCE of a quasi contract requires the moving party to prove a “failure of consideration”, meaning that there was NO CONSIDERATION or the ABSENCE of consideration. See the following, which shifts the burden of proof to the GOVERNMENT to prove that you DID receive consideration:
    How to Reject All Privileges in a Tax Return Filing, FTSIG
    https://ftsig.org/how-to-reject-all-privileges-in-a-tax-return-filing/
  3. Proving that you are NOT a “taxpayer” who is subject to the I.R.C. as defined in 26 U.S.C. §7701(a)(14).
  4. Proving that you are NOT a “person” or “individual” subject to the I.R.C. See 26 U.S.C. §7701(a)(1), 26 U.S.C. §6671(b), and 26 U.S.C. §7343.
  5. Proving that the government’s assessment is arbitrary, which requires you to prove that you DID NOT have income subject to assessment. See Carson v. United States, 560 F.2d. 693, 697-698 (1977); SOURCE: https://scholar.google.com/scholar_case?case=9057113026063279552
  6. Proving that you satisfy the definition of “foreign”, which is defined in 26 U.S.C. §7701(a)(5) as “not domestic”.

Attempts to claim that you are NOT something such as a “taxpayer” or “person” should be avoided, because they are frequently labeled as “frivolous” by the courts. This usually happens because of the near impossibility of proving a negative, as these cites prove.

More authorities on the subject of burden of proof at:

Sovereignty Forms and Instructions Online, Form #10.004, Cites by Topic: “burden of proof”
https://famguardian.org/TaxFreedom/CitesByTopic/BurdenOfProof.htm

AUTHORITIES:

“It is difficult and unfair to require a party to prove a negative fact. See United States v. Corte-Rivera, 454 F.3d 1038, 1041-42 (9th Cir. 2006). ”

[Bank of Am. v. WestTrop Ass’n, No. 2:16-cv-1451-KJD-DJA, at *9 (D. Nev. Mar. 9, 2020) ]

Additionally, placing the burden on the government would require that it prove a negative fact—that the search did not affect the vehicle’s safety or operability. “`[A]s a practical matter it is never easy to 1042*1042 prove a negative.'” Sissoko v. Rocha, 440 F.3d 1145, 1162 (9th Cir.2006) (quoting Elkins v. United States, 364 U.S. 206, 218, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960)). “For this reason, fairness and common sense often counsel against requiring a party to prove a negative fact, and favor, instead, placing the burden of coming forward with evidence on the party with superior access to the affirmative information.” Id.

[United States v. Cortez-Rivera, 454 F.3d. 1038, 1041-1042 (2006); SOURCE: https://scholar.google.com/scholar_case?case=11617890210583360194]

Placing this burden on Sissoko would require that he prove a negative fact — that the INS never issued an expedited removal order pertaining to him. “[A]s a practical matter it is never easy to prove a negative.” Elkins v. United States, 364 U.S. 206, 218, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). For this reason, fairness and common sense often counsel against requiring a party to prove a negative fact, and favor, instead, placing the burden of coming forward with evidence on the party with superior access to the affirmative information.

[Sissoko v. Rocha, 440 F.3d. 1145, 1162 (2006); SOURCE: https://scholar.google.com/scholar_case?case=3911882104496678063]

“[A] witness may clearly testify as to his failure to find the records after a search. This, in fact, is frequently the only way in which a negative fact can be proved.” McClanahan v. United States, 292 F.2d 630, 637 (5th Cir. 1961).”

[Charron v. United States, 412 F.2d 657, 660 (9th Cir. 1969)]

“When a party is attempting to prove a negative slight evidence is sufficient.”

[People v. MacBeth, 104 Cal.App. 690, 692 (Cal. Ct. App. 1930)]

Under the guidelines set forth in Gerardo and Pizzarello, the assessment in the case at bar for August 1970-January 1971 must stand condemned. The record is utterly lacking in evidence that would support an inference the taxpayer operated a gambling business during those months. A 698*698 single $10 notebook entry for May 1969 will not do. Nor without elaboration will the cryptic statement in the agent’s 1973 report that a review of the records seized from appellant “revealed that taxpayer received wagers in both August and November of 1970.” Such an unsupported and unexplained conclusion proves nothing, particularly where none of the records or other evidence introduced at trial by the government and the taxpayer support such a revelation of wagering activities.

The government does not seriously contend otherwise. Rather it takes the following bald, if not bold, position: “With respect to [the 1970-71] assessments, then, the Government relies entirely on the presumption of correctness.” (Govt. Br. at 23). Such a position, which would support the most arbitrary of assessments so long as the taxpayer found himself unable to prove a negative, frequently difficult in quite innocent circumstances, does not become the government’s agents, and we readily reject it.

[Carson v. United States, 560 F.2d. 693, 697-698 (1977); SOURCE: https://scholar.google.com/scholar_case?case=9057113026063279552]

“Where, as here, receipt of a letter is a contested issue, the individual recipient is forced to prove a negative. The law has long recognized that such an evidentiary feat is next to impossible. See Piedmont and Arlington Life-Ins. Co. v. Ewing, 92 U.S. 377, 380, 23 L.Ed. 610 (1875) (“While it may be easy enough to prove the affirmative of [a] question[], it is next to impossible to prove the negative”).”
[Lupyan v. Corinthian Colleges, Inc., 761 F.3d. 314, 322 (2014); SOURCE: https://scholar.google.com/scholar_case?case=7026220226065811743]

Posted in Proof of Facts and tagged ,