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Date: Thu, 29 May 1997 22:16:22 -0700
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: U.S. v. Argomaniz (1 of 2) (fwd)
>Date: Fri, 30 May 1997 00:33:53 -0400
>From: "Dr. Braces" <drbraces@smart1.net>
>Organization: SouthFlorida Orthodontics
>To: pmitch@primenet.com
>Subject: us v argomaniz part 1
>
>-- (Cite as: 925 F.2d 1349)
>
> UNITED STATES of America and L. Simmons, Revenue Officer, of Internal
>Revenue
> Service, Plaintiffs-Appellees,
> v.
> Alberto E. ARGOMANIZ, Defendant-Appellant.
> No. 89-5925.
> United States Court of Appeals,
> Eleventh Circuit.
> March 11, 1991.
> Government filed petition to enforce Internal Revenue Service (IRS)
>summons in
> face of taxpayer's claims of Fifth Amendment privilege. The United
>States
> District Court for the Southern District of Florida, No.
>89-342-CIV-EPS, Eugene
> P. Spellman, J., entered order directing taxpayer to comply with
>summons, and
> taxpayer appealed. The Court of Appeals, Birch, Circuit Judge, held
>that: (1)
> remand was necessary to allow district court to conduct in camera
>proceeding,
> on question-by-question basis, to determine actual extent to which
>taxpayer
> could rely on Fifth Amendment privilege to avoid compliance with
>summons, and
> (2) act of producing financial records and other documents that were
>subject of
> summons would be sufficiently testimonial and incriminating to activate
> taxpayer's Fifth Amendment rights, without regard to whether contents
>of
> documents would themselves be protected by privilege.
> Reversed and remanded.
>
> [1] WITNESSES k297(4.1)
> 410k297(4.1)
> Formerly 410k297(4)
> Fifth Amendment privilege against self-incrimination may be asserted in
>any
> proceeding, civil or criminal, administrative or judicial,
>investigatory or
> adjudicatory, and may be invoked by taxpayer in response to request for
> information in Internal Revenue Service (IRS) investigation. U.S.C.A.
> Const.Amend. 5.
>
> [1] WITNESSES k297(7)
> 410k297(7)
> Fifth Amendment privilege against self-incrimination may be asserted in
>any
> proceeding, civil or criminal, administrative or judicial,
>investigatory or
> adjudicatory, and may be invoked by taxpayer in response to request for
> information in Internal Revenue Service (IRS) investigation. U.S.C.A.
> Const.Amend. 5.
>
> [2] WITNESSES k297(1)
> 410k297(1)
> To invoke Fifth Amendment privilege against self-incrimination in order
>to
> avoid compliance with Internal Revenue Service (IRS) summons, taxpayer
>must
> provide more than mere speculative, generalized allegations of possible
>tax-
> related prosecution; rather, taxpayer must be faced with substantial
>and real
> hazards of self-incrimination. U.S.C.A. Const.Amend. 5.
>
> [3] WITNESSES k297(13.1)
> 410k297(13.1)
> Formerly 410k297(13)
> Taxpayer can have legitimate fear of possible tax-related prosecution,
>so as to
> be entitled to invoke Fifth Amendment privilege against
>self-incrimination in
> response to Internal Revenue Service (IRS) summons, even though IRS
> investigation remains in civil stage. U.S.C.A. Const.Amend. 5.
>
> [4] WITNESSES k308
> 410k308
> It is role of district court, not taxpayer, to evaluate taxpayer's
>claims of
> self-incrimination, and to determine whether taxpayer has legitimate
>fear of
> criminal prosecution sufficient to support invocation of Fifth
>Amendment
> privilege to avoid compliance with Internal Revenue Service (IRS)
>summons.
> U.S.C.A. Const.Amend. 5.
>
> [5] WITNESSES k308
> 410k308
> In evaluating validity of taxpayer's invocation of Fifth Amendment
>privilege
> against self-incrimination, district court must make particularized
>inquiry,
> deciding, in connection with each specific area that questioning party
>wishes
> to explore, whether or not privilege is well-founded. U.S.C.A.
>Const.Amend. 5.
>
> [6] INTERNAL REVENUE k4517
> 220k4517
> Remand was necessary to allow district court to conduct in camera
>proceeding,
> on question-by-question basis, to determine actual extent to which
>taxpayer
> could rely on Fifth Amendment privilege against self-incrimination to
>avoid
> compliance with Internal Revenue Service (IRS) summons. U.S.C.A.
>Const.Amend.
> 5.
>
> [7] WITNESSES k298
> 410k298
> Contents of voluntarily prepared business records are not protected by
>Fifth
> Amendment privilege against self-incrimination. U.S.C.A. Const.Amend.
>5.
>
> [8] WITNESSES k298
> 410k298
> Act of producing financial records and other documents that were
>subject of
> Internal Revenue Service (IRS) summons would be sufficiently
>testimonial and
> incriminating in nature to activate taxpayer's Fifth Amendment
>privilege; act
> of production would establish existence and authenticity of documents
>listed in
> IRS summons, as well as verify that documents were in taxpayer's
>possession.
> U.S.C.A. Const.Amend. 5.
>
> [9] WITNESSES k307
> 410k307
> Blanket refusal to produce records or to testify will not support Fifth
> Amendment claim. U.S.C.A. Const.Amend. 5.
> *1350 David M. Garvin, Philip T. Weinstein, Weinstein & Garvin, Miami,
> Fla., for defendant-appellant.
> Dexter W. Lehtinen, U.S. Atty., Lisa A. Hirsch, Asst. U.S. Atty.,
>Miami, Fla.,
> Kevin M. Brown, Gary R. Allen, Chief, Charles E. Brookhart, U.S. Dept.
>of
> Justice, Tax Div., Washington, D.C., for plaintiffs-appellees.
> Appeal from the United States District Court for the Southern District
>of
> Florida.
>
> Before CLARK and BIRCH, Circuit Judges, and HENDERSON, Senior Circuit
>Judge.
>
> BIRCH, Circuit Judge:
> Appellant Alberto Argomaniz (Argomaniz) appeals from an order of the
> United States District Court for the Southern District of Florida,
>directing
> him to comply with a summons issued by the Internal Revenue Service
>(IRS).
> Compliance with this IRS summons could violate Argomaniz's fifth
>amendment
> privilege against self-incrimination. Accordingly, we REVERSE the
>district
> court's order and REMAND for further proceedings consistent with this
>opinion.
> I. BACKGROUND
> IRS records indicate that Argomaniz did not file income tax returns
>for the
> years 1984 through 1987. Therefore, the IRS initiated an investigation
>into
> Argomaniz's tax liability for those years. As part of this
>investigation, the
> IRS issued an administrative summons, pursuant to 26 U.S.C. s 7602
>[FN1],
> directing Argomaniz to appear before IRS Officer Simmons to give
>testimony and
> produce relevant records and documents. [FN2] On June 20, 1988, the
>summons
> *1351 was served on Argomaniz. On July 12, 1988 and again on October
>13,
> 1988, Argomaniz appeared before Simmons, in compliance with the
>summons, but
> refused to produce any of the summonsed documents. He claimed that
>production
> of the documents would violate his fifth amendment privilege against
>self-
> incrimination. Simmons then referred the matter to the United States
>Attorney
> for enforcement action. On February 21, 1989, the United States filed
>a
> petition in the United States District Court for the Southern District
>of
> Florida, pursuant to 26 U.S.C. ss 7402(b) [FN3] and 7604 [FN4], to
> enforce the summons. Attached to the petition was Simmons'
>declaration,
> stating that proper IRS summons procedure had been followed and that
>the
> documents and information sought by the summons were necessary to the
>IRS
> investigation and not otherwise available. The district court referred
>the
> case to a magistrate, who ordered Argomaniz to show cause why he should
>not be
> compelled to comply with the summons. On April 18, 1989, the show
>cause
> hearing was held. Argomaniz again raised his fifth amendment
>privilege. After
> instructing Argomaniz that he could raise his fifth amendment privilege
>on a
> question-by-question basis, the magistrate entered an order directing
>Argomaniz
> to comply with the summons. On April 28, 1989, Argomaniz appeared
>before
> Simmons and again refused to answer any questions or produce any
>documents
> relating to his tax liability for the years 1984 through 1987. [FN5]
>The
> United *1352 States then filed a motion requesting that the magistrate
>enter
> a report and recommendation. The magistrate complied and recommended
>that the
> district court direct Argomaniz to respond to the summons. In an order
>entered
> on August 7, 1989, the district court adopted the magistrate's report
>and
> recommendation. Argomaniz was ordered to comply with the summons
>within
> fifteen days. If he failed to do so, he would have twenty days to show
>cause
> why he should not be held in contempt. On August 22, 1989, Argomaniz
>appealed
> to this court from the district court's order, and filed a motion in
>the
> district court for a stay of enforcement of the order. By order dated
>October
> 10, 1989, the district court granted Argomaniz's motion and stayed
>enforcement
> of the summons pending his appeal, indicating that Argomaniz had shown
>a
> reasonable fear of criminal prosecution and that enforcement of the
>summons
> could force Argomaniz to waive his fifth amendment privilege against
>self-
> incrimination. [FN6]
>
> FN1. Section 7602 of the Internal Revenue Code provides:
> (a) Authority to summon, etc.--For the purpose of ascertaining the
> correctness of any return, making a return where none has been
>made,
> determining the liability of any person for any internal revenue
>tax or the
> liability at law or in equity of any transferee or fiduciary of any
>person
> in respect to any internal revenue tax, or collecting any such
>liability,
> the Secretary is authorized--
> (1) To examine any books, papers, records, or other data which may
>be
> relevant or material to such inquiry;
> (2) To summon the person liable for tax or required to perform the
>act, or
> any officer or employee of such person, or any person having
>possession,
> custody, or care of books of account containing entries relating to
>the
> business of the person liable for tax or required to perform the
>act, or
> any other person the Secretary may deem proper, to appear before
>the
> Secretary at a time and place named in the summons and to produce
>such
> books, papers, records, or other data, and to give such testimony,
>under
> oath, as may be relevant or material to such inquiry; and
> (3) To take such testimony of the person concerned, under oath, as
>may be
> relevant or material to such inquiry.
>
> FN2. The summons required Argomaniz to produce:
> All documents and records you [Argomaniz] possess or control that
>reflect
> income you received for the year(s) 1984, 1985, 1986, [and] 1987.
>These
> documents and records include, but are not limited to: Forms W-2,
>Wage and
> Tax Statement, Forms 1099 for interest or dividend income, employee
> earnings statements, and records of deposits with banks or other
>financial
> institutions. Also include any and all books, records, documents
>and
> receipts for income from, but not limited to, the following
>sources:
> wages, salaries, tips, fees, commissions, interest, rents,
>royalties,
> alimony, state or local tax refunds, annuities, life insurance
>policies,
> endowment contracts, pensions, estates, trusts, discharge of
>indebtedness,
> distributive shares of partnership income, business income, gains
>from
> dealings in property, and any other compensation for services
>(including
> receipt of property other than money). This includes any and all
>documents
> and records pertaining to any income you have assigned to any other
>person
> or entity.
>
> FN3. Section 7402(b) of the Internal Revenue Code provides:
> (b) To enforce summons.--If any person is summoned under the
>internal
> revenue laws to appear, to testify, or to produce books, papers, or
>other
> data, the district court of the United States for the district in
>which
> such person resides or may be found shall have jurisdiction by
>appropriate
> process to compel such attendance, testimony, or production of
>books,
> papers, or other data.
>
> FN4. Section 7604 of the Internal Revenue Code provides:
> (a) Jurisdiction of district court.--If any person is summoned
>under the
> internal revenue laws to appear, to testify, or to produce books,
>papers,
> records or other data, the United States district court for the
>district in
> which such person resides or is found shall have jurisdiction by
> appropriate process to compel such attendance, testimony, or
>production of
> books, papers, records, or other data.
> (b) Enforcement.--Whenever any person summoned under section ...
>7602
> neglects or refuses to obey such summons, or to produce books,
>papers,
> records or other data, or to give testimony as required, the
>Secretary may
> apply to the judge of the district court or to a United States
>commissioner
> for the district within which the person so summoned resides or is
>found
> for an attachment against him as for a contempt. It shall be the
>duty of
> the judge or the commissioner to hear the application, and, if
>satisfactory
> proof is made, to issue an attachment, directed to some proper
>officer, for
> the arrest of such person, and upon his being brought before him to
>proceed
> to a hearing of the case; and upon such hearing the judge or the
>United
> States commissioner shall have power to make such order as he shall
>deem
> proper, not inconsistent with the law for the punishment of
>contempt, to
> enforce obedience to the requirements of the summons and to punish
>such
> person for his default or disobedience.
>
> FN5. The transcript of this hearing reads, in pertinent part, as
>follows:
> Q [Simmons]: State your name.
> A [Argomaniz]: Al Argomaniz.
>
> * * * * * *
> Q: Your social security number?
> A: 267-11-1925.
> Q: Your home address, your present home address?
> A: 601 Vila Bella....
> Q: What city?
> A: Coral Gables.
> Q: Zip code?
> A: 33143.
>
> * * * * * *
> Q: Do you have your W-2 forms for the years 1984, '85, '86 and '87?
> A: This box together with the boxes which I have brought but can't
>carry
> upstairs at one time contain such as [sic] the requested documents
> [that]were under my custody or control at the time of service of
>the
> summons or at this time.
> However, I respectfully decline to produce, identify or
>authenticate such
> documents based upon my Constitutional privilege [sic] against self
> incrimination.
> In making this claim I rely upon the advice of counsel ....
>
> * * * * * *
> Q: Do you have your deposit information or bank records and other
>financial
> information with you for the periods '84, '85, '86 and '87?
>
> * * * * * *
> A: Based upon my Constitutional rights, I refuse to answer that
>question.
> Q: ... Can you name the employees that you have had, can you give
>me the
> names of the employees you have had over the last four years, '84,
>'85, '86
> an[d] '87?
> A: Based upon my Constitutional rights, I refuse to answer.
> Q: Have you received any interest income?
> A: Based upon my Constitutional rights, I refuse to answer the
>question.
> Q: Do you have any other income sources other than salaries, wages?
> A: Based upon my Constitutional rights, I refuse to answer the
>question.
> Q: Have you made any payments to these taxes for '84, '85, '86 or
>'87?
> A: Based upon my Constitutional rights, I refuse to answer the
>question.
>
> * * * * * *
> Q: You have the records and they apparently are sealed. Now I am
>going to
> ask you to turn them over to me--I will give you a document
>receipt--turn
> the sealed boxes over to me.
>
> * * * * * *
> A: This box together with the boxes that I brought, cannot carry
>upstairs
> at one time, contain such as [sic] the requested documents that
>were under
> my custody or control at the time of service of the summons or at
>this
> time.
> However, I respectfully decline to produce, identify or
>authenticate such
> documents based upon my Constitutional privilege against self
> incrimination. In making this claim I rely upon the advice of
>counsel....
> Q: All right. Well, I see no other recourse than to adjourn the
>meeting
> and proceed with the enforcement under the summons and the court
>order.
>
> * * * * * *
> Q: This concludes the interview.
>
> FN6. In its October 10, 1989 order granting Argomaniz's motion to
>stay
> enforcement of the summons, the district court stated:
> Under the U.S. Supreme Court's holding in United States v. Doe, 465
>U.S.
> 605 [,104 S.Ct. 1237, 79 L.Ed.2d 552] (1983) Petitioner [Argomaniz]
>can
> demonstrate at least some likelihood of prevailing on his Fifth
>Amendment
> claim on appeal. Furthermore, petitioner has shown more than a
>generalized
> fear of criminal prosecution. He was notified that he was to be
>questioned
> regarding his failure to file income tax returns for a three year
>period.
> Certainly petitioner [Argomaniz] has good reason to believe that
>his
> answers may tend to incriminate him, whether or not criminal
>proceedings
> have been instituted against petitioner [Argomaniz]. By not
>staying
> enforcement of the summons pending appeal, this Court would, in
>effect,
> deprive petitioner [Argomaniz] of his appeal on his Fifth Amendment
>claim
> and would force him to waive his constitutional right against self-
> incrimination.
> (emphasis added).
>
> II. DISCUSSION
> [1] The fifth amendment privilege against self-incrimination [FN7]
> "protects a person ... against being incriminated by his own compelled
> testimonial communications." Fisher v. United States, 425 U.S. 391,
>409, 96
> S.Ct. 1569, 1580, 48 L.Ed.2d 39 (1976). It "can be asserted in any
> proceeding, *1353 civil or criminal, administrative or judicial,
> investigatory or adjudicatory." Kastigar v. United States, 406 U.S.
>441,
> 445, 92 S.Ct. 1653, 1656, 32 L.Ed.2d 212 (1972). Accordingly, a
>taxpayer may
> invoke this privilege in response to requests for information in an IRS
> investigation.
>
> FN7. The fifth amendment provides that "[n]o person ... shall be
>compelled
> in any criminal case to be a witness against himself...." U.S.
> Const.Amend. V.
>
> [2] The taxpayer seeking the protection of this privilege to avoid
> compliance with an IRS summons "must provide more than mere
>speculative,
> generalized allegations of possible tax-related prosecution.... [T]he
>taxpayer
> must be faced with substantial and real hazards of self-incrimination."
> United States v. Reis, 765 F.2d 1094, 1096 (11th Cir.1985) (per
>curiam).
> Thus, the question before us is whether Argomaniz has shown such a
>"substantial
> and real hazard of self-incrimination" that the fifth amendment will
>excuse his
> noncompliance with the IRS summons. The answer to this question will
>depend on
> whether compliance with the summons would provide information
>incriminating to
> Argomaniz, and, if so, whether the privilege properly was invoked. See
> Grosso v. United States, 390 U.S. 62, 65, 88 S.Ct. 709, 712, 19 L.Ed.2d
>906
> (1968).
> A. Compliance With The IRS Summons Could Be Incriminating
> [3] "The central standard for the ... application [of the fifth
>amendment
> privilege against self-incrimination is] whether the claimant is
>confronted by
> substantial and 'real', and not merely trifling or imaginary, hazards
>of
> incrimination." Marchetti v. United States, 390 U.S. 39, 53, 88 S.Ct.
>697,
> 705, 19 L.Ed.2d 889 (1968). The privilege applies only in "instances
>where the
> witness has reasonable cause to apprehend danger" of criminal
>liability.
> Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95
>L.Ed.
> 1118 (1951). The government claims that because the IRS investigation
>was of a
> civil nature (its alleged purpose was to determine Argomaniz's civil
>tax
> liability for the years 1984 through 1987), Argomaniz's fear of self-
> incrimination is remote and speculative, and, therefore, not sufficient
>to
> invoke the fifth amendment privilege. However, the structure of the
>IRS, the
> nature of the summons procedure, and the facts of this case compel the
> conclusion that the government's position is incorrect. There can
>exist a
> legitimate fear of criminal prosecution while an IRS investigation
>remains in
> the civil stage, before formal transfer to the criminal division. [FN8]
> See
> United States v. Sharp, 920 F.2d 1167, 1170 (4th Cir.1990) (The
>privilege
> against self-incrimination "may apply in the context of an IRS
>investigation
> into civil tax liability, given the recognized potential that such
> investigations have for leading to criminal prosecutions.").
>
> FN8. The government relies on the following language from our
>decision in
> United States v. Reis, 765 F.2d 1094 (11th Cir.1985) (per curiam),
>to
> support its position that there can never be a reasonable fear of
>criminal
> prosecution while an IRS investigation is still in the civil
>stages:
> When the I.R.S. properly issues a summons in support of a civil
> investigation to determine a taxpayer's legal liability, the mere
>fact that
> evidence might be used in a later criminal prosecution will not
>support a
> blanket claim of self-incrimination.
> Id. at 1096 (emphasis in original). However, this passage does not
> state that the privilege may never be invoked in a civil IRS
> investigation. See United States v. Cuthel, 903 F.2d 1381, 1384
>(11th
> Cir.1990) ("A witness may properly invoke the privilege when he
>'reasonably
> apprehends a risk of self-incrimination, ... though no criminal
>charges are
> pending against him ... and even if the risk of prosecution is
>remote.' "
> (quoting In re Corrugated Container Anti-Trust Litigation, 620 F.2d
> 1086, 1091 (5th Cir.1980), cert. denied sub nom. Adams Extract Co.
>v.
> Franey, 449 U.S. 1102, 101 S.Ct. 897, 66 L.Ed.2d 827 (1981))).
>Instead, it
> stands for the proposition that a blanket claim of
>self-incrimination will
> not be successful in a civil IRS investigation. See United States
>v.
> Allee, 888 F.2d 208, 212 (1st Cir.1989) (citing Reis for the
>proposition
> that a blanket fifth amendment objection to an IRS summons is not a
>viable
> defense). To the extent that Reis could be read otherwise, it is
>obiter
> dictum. Below we discuss the government's argument that
>Argomaniz's fifth
> amendment claim was a blanket claim.
>
> In United States v. LaSalle Nat'l Bank, 437 U.S. 298, 98 S.Ct. 2357,
> 57 L.Ed.2d 221 (1978), the Supreme Court examined the nature of the IRS
> investigatory system, and, relying in part on the legislative history
>of the
> Internal Revenue Code, concluded that the system's "criminal and civil
>elements
> are inherently intertwined." Id. at *1354 309, 98 S.Ct. at 2363. The
> IRS summons procedure reflects the interrelationship of these
>components. The
> IRS summons served on Argomaniz required that he produce all documents
>and
> records related to income he received during the years 1984 through
>1987.
> [FN9] If Argomaniz did produce these documents, assuming that he did
>possess
> them, then both the civil and criminal aspects of the IRS system would
>be
> implicated. The IRS would be able to determine Argomaniz's civil tax
>liability
> for the years in question. However, although "[i]t is true that a
>'routine tax
> investigation' may be initiated for the purpose of a civil action
>rather than
> criminal prosecution[,] ... tax investigations frequently lead to
>criminal
> prosecutions." Mathis v. United States, 391 U.S. 1, 4, 88 S.Ct. 1503,
>1505,
> 20 L.Ed.2d 381 (1968) (holding that even in routine tax investigations
>a person
> in custody, regardless of the reason for his detention, must be given
>the
> warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,
>16
> L.Ed.2d 694 (1966)). Thus, production of these documents and records,
>if
> incriminatory (as will be determined by the in camera inspection
>directed
> below), also likely would cause Argomaniz to incur criminal liability
>for
> violation of the Internal Revenue Code.
>
> FN9. See supra note 2.
>
> Section 7203 of the Internal Revenue Code [FN10] makes willful failure
>to file
> an income tax return a crime. Accordingly, production of these
>documents would
> establish two of the essential elements of this crime--it would prove
>that
> Argomaniz did have taxable income for the years in question, yet failed
>to file
> income tax returns. Under these circumstances, this civil tax
>"investigation
> has become 'an inquiry with dominant criminal overtones' ... [such that
> Argomaniz was] entitled to raise his fifth amendment objections."
>United
> States v. Roundtree, 420 F.2d 845, 852 (5th Cir.1969). The criminal
>penalties
> with which Argomaniz was faced "were scarcely 'remote possibilities out
>of the
> ordinary course of the law' " and his "hazards of incrimination can
>only be
> characterized as 'real and appreciable.' " Grosso v. United States,
>390
> U.S. 62, 66, 67, 88 S.Ct. 709, 713, 19 L.Ed.2d 906 (1968). See also
>United
> States v. Moss, No. 88-2676 (D.Md. July 24, 1990) (WESTLAW, 1990 WL
>169256);
> United States v. Cates, 686 F.Supp. 1185 (D.Md.1988). Therefore,
> Argomaniz's apprehension of criminal prosecution clearly was
>reasonable,
> assuming that the records in his possession would be incriminatory
>under the
> circumstances existing at the time of production. [FN11]
>
> FN10. 26 U.S.C. s 7203 reads as follows:
> s 7203. Willful failure to file return, supply information, or pay
>tax
> Any person required under this title to pay any estimated tax or
>tax, or
> required by this title or by regulations made under authority
>thereof to
> make a return, keep any records, or supply any information, who
>willfully
> fails to pay such estimated tax or tax, make such return, keep such
> records, or supply such information, at the time or times required
>by law
> or regulations, shall, in addition to other penalties provided by
>law, be
> guilty of a misdemeanor and, upon conviction thereof, shall be
>fined not
> more than $25,000 ($100,000 in the case of a corporation), or
>imprisoned
> not more than 1 year, or both, together with the costs of
>prosecution.
> 26 U.S.C. s 6012 reads as follows:
> s 6012. Persons required to make returns of income
> (a) General rule. Returns with respect to income taxes under
>subtitle A
> shall be made by the following:
> (1)(A) Every individual having for the taxable year gross income
>which
> equals or exceeds the exemption amount ...
>
> FN11. In the "Petition to Enforce Internal Revenue Summons"
>Simmons filed
> on February 21, 1989, she stated: "The books, records, papers, and
>other
> data sought by the summons are not already in the possession of the
> Internal Revenue Service." In the Declaration attached to this
>petition,
> Simmons declared, under penalty of perjury, that "[t]he books,
>papers,
> records or other data sought by the summons are not already in the
> possession of the Internal Revenue Service, or are not readily
>accessible
> to us." It should be noted that it would be improper for the IRS
>to seek
> enforcement of a summons, the objects of which already were in its
> possession. United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct.
>248,
> 255, 13 L.Ed.2d 112 (1964). Therefore, because the IRS, by its own
> declaration, has no other ready access to the summonsed documents,
> Argomaniz's production of these documents, assuming the district
>court
> finds them to be in Argomaniz's possession, very well could be
> incriminatory.
>
> [4] *1355 We stress, however, that it is the role of the district
> court, not the taxpayer, to evaluate the taxpayer's claim of
>incrimination and
> determine whether it is reasonable. "The witness is not exonerated
>from
> answering merely because he declares that in so doing he would
>incriminate
> himself--his say-so does not of itself establish the hazard of
>incrimination.
> It is for the court to say whether his silence is justified...."
>Hoffman v.
> United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118
>(1951). See
> also Sharp, 920 F.2d at 1170 ("Whether there is sufficient hazard of
> incrimination is of course a question for the courts asked to enforce
>the
> privilege.").
> [5] In this case, the district court did opine that Argomaniz would
>have a
> legitimate fear of criminal indictment if he complied with the IRS
>summons. In
> its order granting Argomaniz's motion for a stay of enforcement of the
>summons
> pending this appeal, the district court stated that Argomaniz had
>"shown more
> than a generalized fear of criminal prosecution" and had "good reason
>to
> believe that his answers may tend to incriminate him...." [FN12]
>Although this
> finding does suggest that Argomaniz was entitled to raise his fifth
>amendment
> privilege, it does not sufficiently determine the applicability of
>Argomaniz's
> privilege against self-incrimination to the summons at issue in t
>
>
>With Love, Liberty and Justice for All,
>Alex
>http://www.drbraces.com
>e-mail: drbraces@drbraces.com
>
>"When the people fear their government you have tyranny.
>When the government fears the People, you have liberty."
> Thomas Jefferson
>
>Liberty is NEVER an option... only a condition to be lost!
>
>
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Paul Andrew, Mitchell, B.A., M.S. : Counselor at Law, federal witness
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