Chapter 9: The First Party I.R.S Summons

Avoiding Self-Incrimination during IRS Summons

By Seth Maynard

You may be summoned by the Internal Revenue Service (I.R.S.) under the power of Internal Revenue Code (I.R.C.) Sections 7601 through 7655. This was previously a power granted to the Alcohol, Tobacco and Firearms Division of the I.R.S. With this summons, the I.R.S. may inquire about the taxes that you owe the government.

Although, in its summons, the I.R.S. does not claim that the investigation they are going to conduct into your affairs is criminal or civil in nature, it is understandable for the person receiving the summons to have a sense of fear that it would all end up in criminal prosecution. The Supreme Court, in fact, has found that the system that the I.R.S.  uses tends to mix criminal and civil elements together. Also, although “routine” tax investigations may begin as a civil procedure, they frequently end up being criminal prosecutions.

You can defend yourself in these instances by invoking your Fifth Amendment rights. This amendment grants the privilege against self-incrimination. A person may not be compelled to provide testimony that would incriminate his own self. This may successfully be used against I.R.S. summons because, as already mentioned above, the possibility of an investigation resulting in criminal liability exists and is real.

The summons requires the production of all documents and records pertaining to any income you may have earned at any time period. These same materials can be quite incriminating. For example, if asked why you failed to file an income tax return, production of documents already proves that taxable income did exist and that you did fail to file a return. Moreover, these documents are usually not privileged, that is, they cannot be protected by an attorney-client relationship. These may be used against you and producing them for the purposes of investigation would likely cause you to end up incriminating yourself.

Because of the potential to incriminate yourself, you may invoke your Fifth Amendment rights. Thus, you may show that you have the documents being “requested” but respectfully decline to produce or verify the same documents because you have a constitutional right to avoid self-incrimination. You may refuse to answer questions regarding income or finances. The summons asked for the documents, not their contents.

There are, of course, letters and requests to be made. In response to the initial request, you may ask the officer issuing the summons to justify the reasons for the inquiry. You may file a Freedom of Information Act request. If all these begin to sound difficult to you, take heart, Michael S. Ioane’s “Boston Tea Party” contains all the letters, requests and guidance you need to successfully protect yourself from self-incrimination. Read it thoroughly and make use of the ready-made material to navigate these potentially dangerous waters.