Understanding the 5th Amendment Privilege and the Production of Documents in Tax Cases

The Fifth Amendment provides that no person shall be forced to provide a testimonial communication that would incriminate them. In recent tax cases where the Internal Revenue Service is attempting to impose a penalty for failure to file an FBAR penalty, taxpayers have refused to provide the information requested on Fifth Amendment privilege grounds.

The FBAR penalty is imposed when the taxpayer does not report an economic interest in, or signatory authority over, a foreign bank account. The Internal Revenue Service then uses its summons power to require taxpayers to turn over their foreign bank account records. The Bank Secrecy Act (BSA), P.L. 91-508, and the regulations there under require taxpayers to maintain certain records for five years with respect to their foreign bank accounts. There have been several cases in recent years addressing whether or not taxpayers are required to turn over these foreign bank account records, or whether the act of producing the records is itself testimonial and therefore protected by the Fifth Amendment protection against self-incrimination. This course will review the legal authority on summons enforcement and the foregone conclusion exception to the Fifth Amendment's protections against self-incrimination, explore the different theories behind such protection and discuss when the courts will prevent the enforcement of the summonses.

Presented by Richard A. Levine and Charles S. Nelson, this program will benefit attorneys advising clients in tax litigation matters. 

1. Review the Fifth Amendment act-of-production privilege
2. Identify the act-of-production
3. Analyze the foregone conclusion doctrine
4. Provide practical advice for clients in responding to summonses