Ironclad Defenses To Tax Crimes – Part IV

IV. Fifth Amendment Defense

Criminal tax cases are chock full of constitutional claims made by defendants. The tax protest movement, in particular, has spawned many constitutional defenses, from the sublime to the ridiculous.

A valid constitutional defense is the Fifth Amendment right against self-incrimination. In United States v. Sullivan, 274 U.S. 259 (1927), the Supreme Court of the United States held that the privilege against self-incrimination is not a defense to prosecution for failure to file. In other words, a defendant may not rely on the Fifth Amendment to not file at all.

However, the Court said that the privilege could be asserted, in appropriate circumstances, as to specific information sought on a return. “If the form of return provided called for answers that the defendant was privileged from making, he could have raised the objection in the return, but could not on that account refuse to make any return at all.” Sullivan, 274 U.S. at 263.

Sullivan frequently stands for the proposition that taxpayers may refuse to answer specific questions or disclose specific information if that disclosure would be incriminating. Before celebrating, it is important to recognize that disclosure of routine financial information on a tax return does not, in itself, incriminate a person. Therefore, it does not violate the Fifth Amendment privilege against self-incrimination. See California v. Byers, 402 U.S. 424, 428, 430 (1971).

Even if a defendant’s claim of the Fifth Amendment privilege is rejected, that does not prevent him from arguing that he had a good faith belief that he could properly assert the privilege. And a good-faith Fifth Amendment claim – even if erroneous – is a valid defense to willfulness. United States v. Goetz, 746 F.2d 705, 710 (11th Cir. 1984).

Next:  V. Statute of Limitations Defense

In accordance with Circular 230 Disclosure

As a former public defender, Michael has defended the poor, the forgotten, and the damned against a gov. that has seemingly unlimited resources to investigate and prosecute crimes. He has spent the last six years cutting his teeth on some of the most serious felony cases, obtaining favorable results for his clients. He knows what it’s like to go toe to toe with the government. In an adversarial environment that is akin to trench warfare, Michael has developed a reputation as a fearless litigator.

Michael graduated from the Thomas M. Cooley Law School. He then earned his LLM in International Tax. Michael’s unique background in tax law puts him into an elite category of criminal defense attorneys who specialize in criminal tax defense. His extensive trial experience and solid grounding in all major areas of taxation make him uniquely qualified to handle any white-collar case.

   

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