More Fifth Amendment Stuff

                Recently an Anti-IRS Subscriber put together some notes on good Fifth Amendment Cases.  Here is the result of his efforts.  If you would like to explore these issues further, the cases can be found at your local law library.

United States v. Doe 465 US 605, 79 L Ed. 2d 552, 104 S Ct 1237 (1984)

Fifth Amendment privilege against self-incrimination is applicable to the act of producing business records but not to the content of those records.  The act of producing records is testimonial in nature, IRS has within its authority under section 6002 & 6003 the ability to grant immunity in order to have papers produced by the defendant, but in this case it chose not to do so.  There are excellent dissenting opinions.

Betz v United States 753 F 2d 834 (1985 10th circuit)

Blanket 5th amendment claim not valid defense for frivolous return penalty of $500.00 section 6702.  Betz filed return with no information, IRS assessed $500 penalty, Betz appealed and lost and government was awarded double fees.

United States v Amon & Dunbar 669 F. 2d 1351 (1981 10th circuit

False withholding case (Section 7205).  Dissenting opinion by Mckay very interesting in that the judge states that the defendants were singled out for prosecution because they were outspoken tax protesters, However they lost and served I year each.  Important points 1) you cannot expect privacy on forms that you voluntary fill out.

Garner v. United States 424 US 648, 47 L Ed. 2d 370, 96 S Ct 11 78 (1976

Garner admits to being a gambler on his tax return.  Government introduced his tax returns as evidence in illegal betting conspiracy case, which Garner loses, he objects claiming 5th amendment privilege of use of information because it was compelled under 7203.  The court wrestles with the question of whether information provided on 1040 really is "voluntary" but in the end finds he did give up the information freely and lets conviction stand.  Brennan and Marshall dissent saying that 7203 does not compel testimony because taxpayer could in good faith claim 5th amendment privilege although erroneous would not expose him to criminal charges therefore 7203 does not compel any such testimony.  Pretty thin stuff to try to save the income tax I think, but I think it shows a crack in the government's cases.

United States v. Ballard 535 F 2d 400 (1976 9th circuit)

Good case on the difference between "gross receipts" and "gross income"  Ballard operated a junk yard and a storage / trucking rental operation.  Government claimed he failed to provide information on all his gross receipts, he claimed his expenses exceeded gross receipts and therefore had a loss.  On advice from his book keeper he did not file for this loss because he had no papers to back up claim of loss due to a fire that destroyed his records, On page 404 the court admits that the term "income" is not defined in the IRC!!  Court also states that gross receipts are not gross income.  Ballard losses overall and does three years.

United States v. Argomaniz 925 F. 2d 1349 (IIth circuit 1991)

Excellent case on how to assert you right against self-incrimination as the case includes a transcript (including sic!) of Alberto's summons hearing.  The production of books and records can be incriminating therefore you cannot be forced to admit that such records exist.  Argomaniz did not fall into the same trap that Doe (see above ) by not admitting whether he had the specific documents requested.  Even after being ordered by the court to comply with the summons

Argomaniz stood his ground and refused to answer questions relating to the existence of income

(employee's, bank records etc.). Great case.

Liens and levies on after-acquired property

            Once the IRS has filed a general tax lien, it can take property currently owned or it can later take property that is owned after the filing of the lien.  However, a notice of levy is different.  A levy can only apply to property possessed at the time the levy is issued.  If property comes into the possession of the individual after the levy is filed, another levy must be filed.  See United States v. Long Island Drug Company) 115 vF.2d 983.  Reg. 301.6331-1(a)(1). 

            For example, if a bank receives a notice of levy and a deposit is made the next day, the levy applies only to the funds that were in the account at the time the levy was issued.  If the IRS wants to levy a subsequent deposit, it must issue a new notice of levy.   See Regulation 301.6331-1(a)(1). 

            If you have received a notice of levy to your bank account, the bank cannot give money to the IRS that was deposited after the levy was issued.  Remember this fact because it may come in handy in challenging levy action.