|INSTRUCTIONS: 5.8. Claim the 5th Amendment Whenever Questioned by the IRS|
Related forms and publications:
Under the Fifth Amendment to the U.S. Constitution, you can't be compelled to testify against yourself or incriminate yourself. This means you don't have to answer any questions that you feel might do this, nor are you obligated to explain why you think your answers would incriminate you. Under 26 U.S.C. §7604, a federal court can compel you to appear at a summons or deposition if you live in the federal zone (which most people don’t), but they can’t compel you to answer questions or incriminate yourself. Therefore, if you are either summonsed, depositioned, or examined by the IRS, the following guidelines apply to protect your rights and your privacy and keep you out of trouble:
1. DO NOT admit to the existence of any records to ANYONE! You waive your right not to produce them if the IRS knows about the records and they can compel you to provide them! See Fisher v. United States, 425 U.S. 391 (1976) or U.S. v. Doe, 465 U.S. 605 (1984). If the act of making or keeping the records in the first place was compelled and you make this clear, then you don’t have to give them the records because this violates the 5th Amendment.
2. Only present records or evidence to third parties if it will advantage your case and not expose or implicate you criminally in any way.
3. When you must present or provide information, for instance in response to a subpoena or subpoena duces tecum (a deposition where they ask you to provide evidence), ensure that you provide everything you already told people you have (which should be nothing) and as little as possible.
4. If you are depositioned or asked to show up at an audit or summons by the IRS or the government, then:
4.1. Be cooperative and friendly, and don’t resist going to their meeting.
4.2. Respond to their meeting or deposition or exam request in writing with a proof of service by saying that you will be there but that there will be preliminary questions prior to the start of your questioning that will establish their authority to even summons you or attempt to collect or enforce a tax or penalty. Tell them this is a due process hearing to clearly establish their jurisdiction and authority and tell them to make sure they have someone there who is competent and well versed in the law to refute your conclusions that they have no authority or jurisdiction. Emphasize that they aren’t appearing to answer your questions or act as legal counsel, but to refute your detailed and authoritative research clearly showing that they have no authority. Cite as your authority for demanding the preliminary meeting the following:
"It is not the function of our Government to keep the citizen from
falling into error; it is the function of the citizen to keep the government
from falling into error."
4.3. If they grant you a session to answer your questions, then go through the entire Test for Federal Tax Professionals we provide in section 15.1.1 before they ask any questions of you, and get it on tape with a court reporter and an eyewitness. This will really get them squirming. It’s best if you schedule a separate question session for your questions prior to their scheduled date for you, and tell them you won’t go to their meeting unless they go to yours! If they cancel their date then you cancel your date. Tell them if they can cancel, then it must be OK for you to cancel. Call them hypocrites if they won’t cooperate. If they won’t let you answer questions, then tell them you won’t answer their questions and make sure everything about the meeting arrangement is in writing with a proof of service and record your phone conversation about this with them, but make sure you warn them that they are being recorded.
4.4. When you appear to answer their questions, claim the Fifth Amendment in response to EVERY question from them. The only time you should answer a question is if it will make the IRS look bad and advantage your position. If they complain, cite the case of U.S. v. Troescher, No. 95-55609 (unpublished), in which the Ninth Circuit court of appeals ruled that there is no tax crime exception to the Fifth Amendment. We have the court’s findings and and a newspaper article about the case on our website at:
A case that provides very useful background on the difference between Fifth Amendment right of natural persons and artificial entities like corporations is the case of Hale v. Henkel, 201 U.S. 43, 74 (1906). This was a tax case against a corporation and the bookkeeper of the corporation refused to turn over the books of the corporation to the tax collector. The resulting opinion of the Supreme Court is a good read and a must for tax litigants..... Wow....Almost like "Gladiators" only different weapons.....
"The individual may stand upon his constitutional rights as a citizen.
He is entitled to carry on his private business in his own way. His
power to contract is unlimited. He owes no duty to the State or to his
neighbor to divulge his business, or to open his doors to an investigation,
so far as it may tend to criminate him. He owes no such duty to the
State, since he receives nothing therefrom, beyond the protection of
his life and property. His rights are such as existed by the law of
the land long antecedent to the organization of the State, and can only
be taken from him by due process of law, and in accordance with the
Constitution. Among his rights are a refusal to incriminate himself,
and the immunity of himself and his property from arrest or seizure
except under a warrant of the law. He owes nothing to the public so
long as he does not trespass upon their rights."
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