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

(48 reviews)

Produced on December 07, 2020

$ 99 Tax, Constitutional, and Litigation In Stock
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Course Information

Time 1h 31m
Difficulty Intermediate
Topics covered in this course: Tax Constitutional Litigation

Course Description

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. 

Learning Objectives:
  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 

Credit Information

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Richard A. Levine

Roberts & Holland LLP.

Richard A. Levine, for more than 30 years, has represented clients in a wide variety of tax controversy and litigation matters involving federal and New York State and City taxes. His experience spans a full range of civil and criminal tax audits and investigations. He has tried tax cases before the U.S. Tax Court, the U.S. Court of Claims and in various federal District Courts. He has also argued appeals to the U.S. Circuit Courts of Appeal. He co-authored BNA Tax Management Portfolio Tax Court Litigation and published numerous articles on the Tax Court's Rules of Practice and Procedure. He also represents clients in New York State and City tax litigation in matters involving income tax, sales tax, real property transfer taxes and residence issues.

He received a B.S. cum laude from the Wharton School of the University of Pennsylvania, his LL.B. magna cum laude from Harvard, where he was a member of the Law Review, and an LL.M. from New York University.

Charles S. Nelson

Roberts & Holland LLP.

Charles S. Nelson received his B.A. summa cum laude in Economics from Denison University, where he was elected to Phi Beta Kappa, and his J.D. cum laude from Harvard Law School.


Diane H.

Enjoyed this program

Aaron G.

A lot of material was covered in a brief time. The course highlighted timely and relevant material.

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