United States v. Sideman & Bancroft, LLP

A taxpayer's Fifth Amendment right against self-incrimination is not violated where it is established that, before issuing an administrative summons relating to a criminal investigation of that taxpayer, the IRS had independent knowledge of the summonsed documents’ existence and authenticity, and of the respondent’s possession of the documents.

The district court held that certain tax documents in the possession of the taxpayer’s counsel for an IRS criminal investigation met the “foregone conclusion” exception to the Fifth Amendment. The district court determined that defense counsel must comply with the summons from the IRS. Defense counsel appealed, and the Ninth Circuit reviewed the district court’s application of the exception for clear error. The Court determined that the district court properly applied the exception and established that the IRS had independent knowledge of the existence and authenticity of the documents, and that defense counsel possessed the documents. The government presented information from the taxpayer’s accountant that confirmed the existence of the documents. The accountant declared that she had used these documents in preparing tax returns and was sufficiently familiar with the documents to provide details of their contents and to authenticate the documents. She gave them to a tax attorney, who in turn, declared he had given the documents to defense counsel. Thus, the Court held that there was no clear error based on the declarations of the accountant and tax attorney, and that all the elements of the foregone conclusion exception were satisfied. AFFIRMED.