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Do Americans really have to pay income tax? I have been told the 16th Amendment, which authorized the income tax, is invalid because Ohio was not legally a state at the time of ratification. So far I haven't had the nerve to actually try this argument out on the IRS, but with Christmas coming I could use the extra cash. What do you think, Cecil, is it worth a shot?

--Tex R. Zister, Chicago

This is my absolute favorite anti-income-tax argument. Most claims that Americans aren't required to pay income tax rely on legal interpretations so tortured only a tax resister could possibly believe them. But the Ohio thing has just enough plausibility to give even sane people pause.

It all started when Ohio was preparing to celebrate the 150th anniversary of its admission to the Union in 1953. Researchers looking for the original statehood documents discovered there'd been a little oversight. While Congress had approved Ohio's boundaries and constitution, it had never passed a resolution formally admitting the future land of the Buckeyes. Technically, therefore, Ohio was not a state.

Predictably, when this came to light it was the subject of much merriment. One senator joshingly suggested that his colleagues from Ohio were drawing federal paychecks under false pretenses.

But Ohio congressman George Bender thought it was no laughing matter. He introduced a bill in Congress to admit Ohio to the Union retroactive to March 1, 1803. At a special session at the old state capital in Chillicothe the Ohio state legislature approved a new petition for statehood that was delivered to Washington on horseback. Congress subsequently passed a joint resolution, and President Eisenhower, after a few more jokes, signed it on August 7, 1953.

But then the tax resisters got to work. They argued that since Ohio wasn't officially a state until 1953, its ratification of the 16th Amendment in 1911 was invalid, and thus Congress had no authority to enact an income tax.

Baloney, argued rational folk. A sufficient number of states voted for ratification even if you don't count Ohio.

OK, said the resisters, but the proposed amendment had been introduced to Congress by the administration of William H. Taft. Taft had been born in Cincinnati, Ohio, in 1857. The Constitution requires that presidents be natural-born citizens of the United States. Since Ohio was not a state in 1857, Taft was not a natural-born citizen, could not legally be president, and could not legally introduce the 16th Amendment. (Presumably one would also have problems with anything done by presidents Grant, Hayes, Garfield, B. Harrison, McKinley, and Harding, who were also born in Ohio.)

Get off it, the rationalists replied. The 1953 resolution retroactively admitted Ohio as of 1803, thereby rendering all subsequent events copacetic.

Uh-uh, said the resisters. The constitution says the Congress shall make no ex post facto law. That means no retroactive admissions to statehood.

Uh, we'll get back to you on that, said the rationalists.

A call to the IRS elicited the following official statement: "The courts have . . . rejected claims that the Sixteenth Amendment . . . was not properly ratified. . . . In Porth v. Brodrick, 214 F.2d 925 (10th Circuit 1954), the court dismissed an attack on the Sixteenth Amendment as being 'clearly unsubstantial and without merit,' as well as 'far fetched and frivolous.'"

Just one problem. The Porth decision didn't specifically address the Ohio argument. It just sort of spluttered that attacks on the 16th Amendment were stupid.

OK, they're stupid. But great matters have turned on seemingly sillier points of law. It's not like the Ohio argument couldn't have been defeated on the merits. One suspects that from a legal standpoint "ex post facto" doesn't mean exactly the same thing as "retroactive." And of course the weight of 150 years of history, during which time everyone thought Ohio had been properly admitted, ought to count for something.

I'm not defending the crackpots. But if you're a parent you recognize that "because I said so" isn't much of an argument. Guess it's different if you're a judge.

--CECIL ADAMS

Is there something you need to get straight? Cecil Adams can deliver the Straight Dope on any topic. Write Cecil Adams at the Chicago Reader, 11 E. Illinois, Chicago 60611; E-mail him at cecil@chireader.com; or visit the Straight Dope area at America Online, keyword: Straight Dope.

Art accompanying story in printed newspaper (not available in this archive): illustration/Slug Signorino.

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