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Fisher v. U.S

Citation. Fisher v. United States, 562 U.S. 831, 131 S. Ct. 103, 178 L. Ed. 2d 30, 79 U.S.L.W. 3196 (U.S. Oct. 4, 2010)
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Brief Fact Summary.

Two taxpayers, Mr. Kasmir and Mr. Fisher (taxpayers) were visited by two Internal Revenue Service (IRS) agents and interviewed in connection with two separate investigations into possible violations of federal tax laws; following the interviews, each taxpayer obtained documents from his accountant and turned the documents over to his attorney. When the IRS issued summonses seeking the documents, the attorneys refused to comply, after which a District Court ordered the summonses enforced in each case. When two different Courts of Appeals came to different conclusions about whether the summonses should be enforced, the United States Supreme Court granted certiorari here to decide the issue and resolve the Circuit Court conflict.

Synopsis of Rule of Law.

A subpoena, served on the attorney of a taxpayer by the IRS, which commands the attorney to produce documents prepared by the taxpayer’s accountant and given to the attorney by the taxpayer, does not violate the taxpayer’s Fifth Amendment right against self-incrimination, as the production of the documents does not compel oral testimony nor does it compel the taxpayer to affirm the authenticity of the documents sought.


Two taxpayers, Mr. Kasmir and Mr. Fisher (taxpayers) were visited by two Internal Revenue Service (IRS) agents, and were interviewed in connection with two separate investigations into possible violations of federal tax laws.
Following the interviews, the taxpayers retrieved, from their accountants, documents related to their tax return preparation and filing, and gave those documents to their attorneys. The IRS then issued summonses to the attorneys, seeking the documents.
Both clients’ attorneys refused to turn over the documents sought by the IRS, arguing that doing so would violate their clients’ Fifth Amendment rights against self-incrimination.
In both cases, a District Court ordered the summonses enforced, and appeals followed.
In one case, the Court of Appeals for the Third Circuit affirmed the enforcement order, and in the other case, the Court of Appeals for the Fifth Circuit reversed the order.
The United States Supreme Court granted certiorari to resolve the Circuit Court split.


When the Internal Revenue Service, during the course of a tax investigation, serves summonses on taxpayers’ attorneys commanding the attorneys to produce documents given to the attorneys by their clients and concerning the taxpayers’ accounting, are the Fifth Amendment rights against self-incrimination of the taxpayers violated?


No; the enforcement of such summonses against the taxpayers’ attorneys does not involve any compelled testimonial self-incrimination, and therefore does not violate the Fifth Amendment rights of the taxpayers.


Justices Brennan (writing) and Marshall, concurred in the Court’s holding, but did not join in the Court’s opinion because “of the portent of much of what is said of a serious crippling of the protection secured by the privilege against compelled production of one’s private books and papers.” Specifically, the dissent argued that the Court’s holding, “is but another step in the denigration of privacy principles settled nearly 100 years ago . . . [and that the] implication that the privilege might not protect against compelled production of tax records that are [one’s] ‘private papers’ is . . . contrary to settled constitutional jurisprudence . . . .”


The Court first pointed out that, “The Court has held repeatedly that the Fifth Amendment is limited to prohibiting the use of ‘physical or moral compulsion’ exerted on the person asserting the privilege.” (citations omitted). The Court then cited its decision in Couch v. United States, 409 U.S. 322 (1973), in which it was held that, “the Fifth Amendment rights of a taxpayer were not violated by the enforcement of a documentary summons directed to her accountant and requiring production of the taxpayer’s own records in the possession of the accountant.” The Court then applied the decision in Couch to the present case, writing:
Here, the taxpayers are compelled to do no more than was the taxpayer in Couch. The taxpayers’ Fifth Amendment privilege is therefore not violated by enforcement of the summonses directed toward their attorneys. This is true whether or not the Amendment would have barred a subpoena directing the taxpayer to produce the documents while they were in his hands.
The Court also supported its holding through an examination of the language of the Fifth Amendment, stating:
A subpoena served on a taxpayer requiring him to produce an accountant’s workpapers in his possession without doubt involves substantial compulsion. But it does not compel oral testimony; nor would it ordinarily compel the taxpayer to restate, repeat, or affirm the truth of the contents of the documents sought. Therefore, the Fifth Amendment would not be violated by the fact alone that the papers on their face might incriminate the taxpayer, for the privilege protects a person only against being incriminated by his own compelled testimonial communications.
The Court concluded that since, “surely it is not illegal to seek accounting help in connection with one’s tax returns or for the accountant to prepare workpapers and deliver them to the taxpayer . . . we are quite unprepared to hold that either the fact of existence of the papers or of their possession by the taxpayer poses any realistic threat of incrimination to the taxpayer.”

Evidence Keyed to Mueller & Kirkpatrick


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