United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
A. ROSS, UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner United States of
America's Petition to Enforce IRS Summons. (Doc. 1.) Both
parties submitted written argument and a hearing was held on
the record on June 13, 2018. Upon consideration, the Court
will grant the Petition in part and order Respondent Steven
B. Durham to provide testimony responsive to Petitioner's
requests for testimony and documentation as more fully set
asserts the following: In 2016, the IRS opened an
investigation into Respondent's individual income tax
liability for tax years 2013, 2014, and 2015. Respondent was
directed to appear, testify, and produce relevant
documentation. (See Doc. 16-1.) On December 5, 2016,
Respondent appeared with counsel before IRS employees.
Respondent did not speak and his counsel refused to answer
the questions asked, but one week later, Respondent provided
an affidavit answering the questions asked at the meeting.
(See Doc. 16-2.) A second meeting was scheduled.
Respondent appeared and again refused to answer the IRS
agent's follow-up questions, this time asserting that his
Fifth Amendment right against self-incrimination.
February 16, 2018, Petitioner filed this Petition, asking the
Court to order Respondent to answer thirty-one questions
asked at the follow-up meeting and to produce six categories
of documents sought by the agency. (Docs. 1, 16, 16-3.)
Petitioner argues that Respondent has no legitimate Fifth
Amendment right to refuse and that even if he does, his
affidavit acts as a waiver of that right. (Doc. 16.)
Respondent opposes the Petition. (Doc. 17.)
courts will enforce an IRS summons if the record shows that
“the investigation will be conducted pursuant to a
legitimate purpose, that the inquiry may be relevant to the
purpose, that the information sought is not already within
the [IRS's] possession, and that the administrative steps
required by the Code have been followed.” United
States v. Norwood, 420 F.3d 888, 892 (8th Cir. 2005)
(quoting United States v. Powell, 379 U.S. 48, 57-58
(1964)). Respondent does not challenge the enforceability of
the summons, but the Court concludes that the record does
show that the IRS investigation is conducted for the
legitimate purpose of examining Respondent's potential
tax liability, the questions asked of Respondent are relevant
to that purpose, the information sought in the questions is
not already in the IRS's possession, and the appropriate
administrative steps have been taken. The Court will
therefore enforce the summons to the extent doing so does not
offend Petitioner's Fifth Amendment right against
taxpayer may refuse to answer an IRS agent's questions if
“the answers might incriminate him in future criminal
proceedings.” Minnesota v. Murphy, 465 U.S.
420, 426 (1984) (quoting Lefkowitz v. Turley, 414
U.S. 70, 77 (1973)). To properly assert his Fifth Amendment
right against self-incrimination, the taxpayer must be facing
a real and substantial risk of criminal prosecution.
United States v. Apfelbaum, 445 U.S. 115, 128
(1980). Likewise, the Court must review the taxpayer's
Fifth Amendment assertion on a question-by-question basis.
United States v. Argomaniz, 925 F.2d 1349, 1355
(11th Cir. 1991); United States v. Melchor Moreno,
536 F.2d 1042, 1049 (5th Cir. 1976); United States v.
Rue, 819 F.2d 1488 (8th Cir. 1987).
is investigating Respondent's individual income tax
liabilities for 2013, 2014, and 2015. (Doc. 1 at 1.) It is
apparent from Respondent's affidavit and his
counsel's representations before the Court that
Respondent did not timely file his 2014 or 2015 individual
income tax returns. It is illegal to willfully attempt to
evade or defeat tax or to willfully fail to file a tax
return, supply information, or pay tax. 26 U.S.C.
§§ 7201, 7203. The Court concludes that the
IRS's investigation into Respondent's 2013, 2014, and
2015 tax returns illustrates that Respondent is confronted by
a real and substantial risk of criminal prosecution. The
Court will therefore enforce the summons only as to
individual follow-up questions that do not pose a risk of
incrimination absent a waiver by Respondent of his Fifth
Amendment right not to answer.
taxpayer may waive his Fifth Amendment right not to answer a
given question by willingly answering related questions.
United States v. Singer, 785 F.2d 228, 241 (8th Cir.
fact, the Court must infer waiver when:
(1) the witness' prior statements have created a
significant likelihood that the finder of fact will be left
with and prone to rely on a distorted view of the truth, and
(2) the witness had reason to know that his prior statements
would be interpreted as a waiver of the [F]ifth
[A]mendment's privilege against self-incrimination.
Id. (quoting Klein v. Harris, 667 F.2d 274,
287 (2d Cir.1981)). The Court finds that the second priong is
met in this case. Having refusing to answer the IRS
agent's questions in the initial meeting, Petitioner had
reason to know that the answers provided his affidavit would
undermine any future assertion of a Fifth Amendment right not
to discuss those matters. Furthermore, after considering each
question, the Court ...