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
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