Date: Tue, 10 Jun 1997 23:35:31 -0700 From: Harold Thomas Reply-To: harold@halcyon.com To: Jus Dare Subject: IRS Summons/5th Amendment Following are excerpts of a recent case from the District Court, Southern District of Ohio Western District in Cincinnati, Ohio. This Citizen successfully beat a challenge by the U.S. attorney for a copy of his books and records, using the 5th Amendment! UNITED STATES OF AMERICA, Plaintiff Vs WILLIAM J. MERCER Defendant Cincinnati, Ohio Thursday, May 30, 1996 10:09 a.m. Civil No. C-1-95-461 MR. COOMBE: (James M. Coombe, Esq., Assistant United States Attorney) Essentially, your Honor, what we're asking for is for the Court to enforce its order because Mr. Mercer was previously ordered by this Court on February 21st, 1996 to appear on March 8th before the IRS and give testimony and bring any books and records in his possession that would allow the Internal Revenue Service to prepare a 1040, for the tax year 1992. THE COURT: Now that isn't exactly what the order said, is it? ... It's my understanding that from the transcript that's been supplied me. that when asked, Mr. Mercer said he had no records. MR. COOMBE: Your Honor, I think the problem we're dealing with here is not whether or not he had records, but that he was also asked questions; so he could testify; so they could get relevant information... THE COURT: Now stop right there. Now, he did appear, and he gave testimony. MR. COOMBE: I would dispute that, your honor. THE COURT: Well, he did give testimony-you gave me the transcript. MR. COOMBE: He didn't provide any testimony. THE COURT: I hold that he did give testimony. MR. COOMBE: Okay THE COURT: Now proceed. MR. COOMBE: I really can't proceed, then, Your Honor. THE COURT: Now are you here because he didn't give the testimony you wanted? MR. COOMBE: Well, Your Honor, my understanding is that the whole purpose of this procedure is for the IRS to be able to enforce the summons where it could get the testimony it needed to prepare a tax return. THE COURT: The whole purpose of this proceeding is to determine whether Mr.Mercer deliberately and intentionally violated the order of this Court -- and I say that he did appear and he did testify... MR. COOMBE: I don't think he answered the questions ... For example, they asked him about his personal expenses and he said. 'ditto'. THE COURT: That's right, 'ditto.' means he is referring back to his claiming of the Fifth Amendment. He said that he would perjure himself if he answered the question. and then he said, 'Ditto, Ditto, Ditto, Ditto, Ditto.' MR. COOMBE: That's correct. THE COURT: To me, he claimed, the Fifth Amendment. MR. COOMBE: Your honor, under the Powell decision, all the United States has to do to have a Summons enforced is to provide four' pieces of information, which we have done countless times before... THE COURT: In other words, you say he has no right to claim the Fifth Amendment? MR. COOMBE: Well, Your Honor, I don't think that's been accepted by anybody concerning a civil summons enforcement. I am not aware of a case that allows him to do that. [Note: Where did Mr. Coombie get his degree, at the "Government Lies Law School'? How about a Supreme court case? 'The fifth amendment's protection applies in any type of proceeding whether civil, criminal, administrative, investigatory, or adjudicatory. ' Maness v. Mceym, 419 U.S. 449 (1975).] THE COURT: You mean to tell me that you believe a witness cannot claim the Fifth Amendment in a Civil Case? MR. COOMBE: ... Let's ask a rhetorical question. If every single person decides to take the Fifth Amendment on a Tax Return, the tax is never going to be collected. THE COURT: That's exactly what they can do as I understand it! [I like this judge! He's upholding his oath to defend the Constitution and the rights o the people from government abuse! - Lynxes] THE COURT: ... [ To William Mercer] In the brief you filed with me, you did claim your Fifth Amendment Right, is that correct? MR. MERCER: Yes. THE COURT: [To Mr. Coombe] Any witness or evidence you wish to present, Mr. Coombe? MR. COOMBE: In light of your holding, your Honor, I don't think there's anything I could put on that would change that. THE COURT: Let the record show that Mr. Mercer stated that he wanted to cooperate. Is that correct, Mr. Mercer? MR. MERCER: Yes, sir. THE COURT: That he did appear as ordered by the Court on March the 8th, 1996 at 10 a.m. That he did give testimony; that he stated at the time of the hearing before the Internal Revenue officer and that he reiterated in this court, that he has no records ... Going further he has invoked the Fifth Amendment as to certain questions that were asked at the Internal Revenue Hearing. It's the opinion of this Court that, the fact that we have a tax code does not take away our rights as citizens to claim the fifth when we feel we will be incriminated by the statements we give. In view of the situation. I dismiss the show cause or contempt order against Mr. Mercer and find that he has answered the questions under oath and according to his testimony, he has no records. Mr. Coombe, I've tried to make the record as clear and concise as I can on this particular issue ... This case is dismissed. ***************************************************************************