At 09:17 AM 2/5/2002 -0500, you wrote: >"We are here faced with a case in which the taxpayer did assert his >privilege in response to specific questions in the tax return form, but did >so on such a wholesale basis as to deny the IRS any useful financial or tax >information. Other circuits, faced with similar wholesale assertions of the >privilege against self-incrimination, have concluded that a tax return form >which contains no information from which tax liability can be calculated >does not constitute a tax return within the meaning of the IRS laws. Once >these courts determine that the taxpayer has filed no return, simple >application of the Sullivan precedent, which states that the Fifth >Amendment will never justify a complete failure to file a return, >invalidates the Fifth Amendment defense. E. g., United States v. Irwin, 561 >F.2d 198, 201 (10th Cir. 1977), cert. denied, 434 U.S. 1012, 98 S.Ct. 725, >54 L.Ed.2d 755 (1978); United States v. Silkman, 543 F.2d 1218, 1219-20 >(8th Cir. 1976) (per curiam), cert. denied, 4! >31! > U.S. 919, 97 S.Ct. 2185, 53 L.Ed.2d 230 (1977); United States v. Daly, >481 F.2d 28, 30 (8th Cir.) (per curiam), cert. denied, 414 U.S. 1064, 94 >S.Ct. 571, 38 L.Ed.2d 469 (1973)." > > >If I follow this, a tax return in which the filer does not disclose >financial information specifically on the basis of self-incrimination >doctrine has filed a document that does not qualify to be considered a tax >return, and since he has not filed a tax return he has invalidated his >fifth amendment defense. > >The difference between this line of reasoning, and the abrogation of the >fifth amendment rights in regard to taxation, is difficult to see.
Yes it is. However, if mean-green's posting on Politech has some basis then perhaps there is hope. >>In Swallow v. United States, 325 F.2d 9F (10th Cir. 1963), cert. denied, >>377 U.S. 951 (1964), the court held, "It is now well settled that the >>income tax laws are not unconstitutional under the due process clause of >>the Fifth Amendment..." >> >>"The Supreme Court has stated that the privilege against >>self-incrimination, if validly exercised, is an absolute defense to a >>section 7203 prosecution for failure to file an income tax return. Garner >>v. United States, supra, 424 U.S. at 662-63, 96 S.Ct. at 1186-1187. The >>Court has also held, however, that the privilege does not justify an >>outright refusal to file any income tax return at all. United States v. >>Sullivan, 274 U.S. 259, 263, 47 S.Ct. 607, 71 L.Ed. 1037 (1927). >>Furthermore, an objection may properly be raised only in response to >>specific questions asked in the return. Id. See Garner v. United States, >>501 F.2d 228, 239 n.18 (9th Cir. 1974) (en banc), aff'd Garner v. United >>States, supra, 424 U.S. 648, 96 S.Ct. 1178, 47 L.Ed.2d 370. >> >>"We are here faced with a case in which the taxpayer did assert his >>privilege in response to specific questions in the tax return form, but >>did so on such a wholesale basis as to deny the IRS any useful financial >>or tax information. Other circuits, faced with similar wholesale >>assertions of the privilege against self-incrimination, have concluded >>that a tax return form which contains no information from which tax >>liability can be calculated does not constitute a tax return within the >>meaning of the IRS laws. Once these courts determine that the taxpayer >>has filed no return, simple application of the Sullivan precedent, which >>states that the Fifth Amendment will never justify a complete failure to >>file a return, invalidates the Fifth Amendment defense. E. g., United >>States v. Irwin, 561 F.2d 198, 201 (10th Cir. 1977), cert. denied, 434 >>U.S. 1012, 98 S.Ct. 725, 54 L.Ed.2d 755 (1978); United States v. Silkman, >>543 F.2d 1218, 1219-20 (8th Cir. 1976) (per curiam), cert. denied, 4! 31! >>U.S. 919, 97 S.Ct. 2185, 53 L.Ed.2d 230 (1977); United States v. Daly, >>481 F.2d 28, 30 (8th Cir.) (per curiam), cert. denied, 414 U.S. 1064, 94 >>S.Ct. 571, 38 L.Ed.2d 469 (1973)." >> >>So, its apparent that even though you must file a return which contains >>some information from which tax liability can be calculated you can still >>assert your 5th Amendment rights by refusing to provide certain, even >>substantial, information, as long as its so noted. There seems to be no >>required method of denoting your method of assertion and it appears it >>can be quite non-obvious to the IRS data entry people and still pass >>muster. So, unless you are audited the IRS will be unaware of the 5th >>Amendment assertion and if they do audit you can bring it to their >>attention without fear of prosecution for filing a false return. Be >>prepared however for the IRS to prosecute you for filing a frivolous >>return, a misdemeanor, as a means of harassment. steve
