Sheehan winning summons enforcement?

[LPC]

A terse, and probably garbled report from Faux News in Sacramento:

A federal judge said Thursday that activist Cindy Sheehan doesn't have to answer questions or hand over documents in a tax case.

[...]

According to a press release, Sheehan agreed to meet with the IRS in May but reserved the right to refuse to answer any questions, citing the 1st and 5th Amendments.

The "tax case" in question is an action to enforce an IRS summons, United States v. Cindy Lee Sheehan, No. 2:12-cv-00440-GEB-JFM (E.D. Cal.).

The following is the docket entry for 4/19/2012:

MINUTES (Text Only) by CRD for SHOW CAUSE HEARING proceedings held before Magistrate Judge John F. Moulds on 4/19/2012. Plaintiffs Counsel Adair Boroughs present. Defendants Counsel Dennis Cunningham present. Discussion regarding pending order to show cause before the court. Matter submitted. Court order to follow. Court Reporter/CD Number: 1 of 1. (Anderson, J) (Entered: 04/20/2012)

Now, it's very difficult for the IRS to lose in an action to enforce a summons.

The 1st Amendment claim is, of course, ridiculous.

I suspect that Sheehan has claimed a 5th Amendment privilege on the grounds that the production of the documents might be "testimonial" and so privileged if the documents might incriminate her (which they might).

We'll know better once the judge has issued an actual ruling.

[Dr. Caligari]

Now, it's very difficult for the IRS to lose in an action to enforce a summons.

It is, actually, very easy for an individual taxpayer to assert the 5th Amendment in response to questioning under a summons. That is not, strictly speaking, a defense to summons enforcement-- the court will order the taxpayer to appear in response to the summons and assert the privilege on a question-by-question basis. But the IRS will not, in practice, get a lot of answers.

[Kestrel]

It didn't work for Cryer. viewtopic.php?t=6190

The Fifth Circuit has held that an individual who seeks to avoid compliance with an IRS summons on the basis of the Fifth Amendment right against self-incrimination bears the burden of first showing that the IRS's purpose in issuing the summons is solely criminal, or that the inquiry is one with dominant criminal overtones. See United States v. Roundtree, 420 F.2d 845,852 (5th Cir. 1969); United States v. Pate, 105 F. App'x 597, 599 (5th Cir. 2004). The mere fact that the evidence obtained through the summons may later be used against the taxpayer in a criminal prosecution is no barrier to enforcement and is not sufficient to invite a Fifth Amendment claim. See Roundtree, 420 F .2d at 850-51. Cryer has failed to bear this threshold burden. Furthermore, the Fifth Circuit has made it abundantly clear that a blanket refusal to produce records or to testify, which Cryer has tendered in this case, is not allowed. See id. at 852; Pate, 105 F. App'x at 599; Steinbrecher v. Comm'r of Internal Revenue, 712 F.2d 195, 198 (5th Cir. 1983).

[JamesVincent]

It didn't work for Cryer. viewtopic.php?t=6190

The Fifth Circuit has held that an individual who seeks to avoid compliance with an IRS summons on the basis of the Fifth Amendment right against self-incrimination bears the burden of first showing that the IRS's purpose in issuing the summons is solely criminal, or that the inquiry is one with dominant criminal overtones. See United States v. Roundtree, 420 F.2d 845,852 (5th Cir. 1969); United States v. Pate, 105 F. App'x 597, 599 (5th Cir. 2004). The mere fact that the evidence obtained through the summons may later be used against the taxpayer in a criminal prosecution is no barrier to enforcement and is not sufficient to invite a Fifth Amendment claim. See Roundtree, 420 F .2d at 850-51. Cryer has failed to bear this threshold burden. Furthermore, the Fifth Circuit has made it abundantly clear that a blanket refusal to produce records or to testify, which Cryer has tendered in this case, is not allowed. See id. at 852; Pate, 105 F. App'x at 599; Steinbrecher v. Comm'r of Internal Revenue, 712 F.2d 195, 198 (5th Cir. 1983).

So to use the 5th to avoid implicating yourself you must first prove that you are a criminal? Am I reading that right?

[Kestrel]

So to use the 5th to avoid implicating yourself you must first prove that you are a criminal? Am I reading that right?

Not quite. You must show that the reason for the IRS inquiry is that you are either accused or strongly suspected of being a criminal (they're trying to put you in jail). It's up to the judge and jury to decide whether you really are a criminal.

Strictly speaking, a summons to produce or testify to your financial records is just a civil matter (all your base are belong to us). You're merely suspected of not reporting your financial records accurately. The fact that you're also secretly laundering drug money, and someone examining your records could uncover that and use your records to prosecute you later, is insufficient to quash the civil case subpoena. However, in that situation you probably ought to hire a criminal defense lawyer.

(Edited to clarify)

[Dr. Caligari]

The Fifth Circuit has held that an individual who seeks to avoid compliance with an IRS summons on the basis of the Fifth Amendment right against self-incrimination bears the burden of first showing that the IRS's purpose in issuing the summons is solely criminal, or that the inquiry is one with dominant criminal overtones.

That's just flat-out wrong and is inconsistent with the law in every other circuit. The test for invoking the 5th Amendment is not whether the Government is trying to prosecute you, but whether a truthful answer might in fact incriminate you even of a crime the Government may not even be aware of. A long line of U.S. Supreme Court cases, starting with Hoffman v. US, so holds.

[Kestrel]

The Fifth Circuit has held that an individual who seeks to avoid compliance with an IRS summons on the basis of the Fifth Amendment right against self-incrimination bears the burden of first showing that the IRS's purpose in issuing the summons is solely criminal, or that the inquiry is one with dominant criminal overtones.

That's just flat-out wrong and is inconsistent with the law in every other circuit. The test for invoking the 5th Amendment is not whether the Government is trying to prosecute you, but whether a truthful answer might in fact incriminate you even of a crime the Government may not even be aware of. A long line of U.S. Supreme Court cases, starting with Hoffman v. US, so holds.

Nonetheless, that's what the judge ruled, citing the Roundtree decision.

I don't have an in-depth familiarity with either Roundtree or Hoffman, so I'm not in a position to discuss the differences.