40.03[11]  Jury Nullification

      "Jury nullification" is the concept that a jury has the right to ignore a

judge's instructions on the law in a trial, if it feels the law is unjust, and

acquit the defendant even if the government has proven guilt beyond a reasonable

doubt.  Protesters often argue that the authors of the Bill of Rights intended

the Sixth Amendment to incorporate such a right.  There is, however, no

constitutional right to a jury nullification instruction.  

United States

v. Powell, 955 F.2d 1206, 1213 (9th Cir. 1992); 

United States

 v.

Krzyske, 836 F.2d 1013, 1021 (6th Cir. 1988) (upholding court's response

to jury's inquiry about meaning of "jury nullification" that "[t]here is no such

thing as valid jury nullification.  Your obligation is to follow the instructions

of the court as to the law given to you."); 

United States

 v.

Drefke, 707 F.2d 978, 982 (8th Cir. 1983); 

United States

 v.

Buttorff, 572 F.2d 619, 627 (8th Cir. 1978). 

See also 

United States

 v. Dougherty, 473 F.2d

1113, 1130-1137 (D.C. Cir. 1972), for a thorough discussion of the issue of jury

nullification and its historical origins.

---

                        40.04 WILLFULNESS

      Willfulness, the voluntary, intentional violation of a known legal duty

(Cheek v. United States, 498 U.S. 192, 201 (1991)), may be proved

entirely by circumstantial evidence.  

United States

 v. McCaffrey,

181 F.3d 854, 856 (7th Cir. 1999); 

United States

 v. Threadgill, 172

F.3d 357, 367 (5th Cir.1999); 

United States

 v. Tucker, 133 F.3d

1208, 1218 (9th Cir. 1998); 

United States

 v. King, 126 F.3d 987,

993 (7th Cir. 1997); 
United States
 v. 

Rosario

, 118

F.3d 160, 164 (3d Cir. 1997); 

United States

 v. Klausner, 80 F.3d

55, 62 (2d Cir. 1996); 

United States

 v. Wynn, 61 F.3d 921, 925

(D.C.Cir. 1995); 

United States

 v. Daniel, 956 F.2d 540, 543 (6th

Cir. 1992); 

United States

 v. Fingado, 934 F.2d 1163, 1167

(10th Cir. 1991); 

United States

 v. Grumka, 728 F.2d 794, 797

(6th Cir. 1984); 

United States

 v. Gleason, 726 F.2d 385, 388

(8th Cir. 1984); 

United States

 v. Schiff, 612 F.2d 73, 77-78

(2d Cir. 1979); Hellman v. 

United States

, 339 F.2d 36, 38 (5th Cir.

1964).

      [T]rial courts should follow a liberal policy in admitting evidence 

      directed towards establishing the defendant's state of mind.  No 

      evidence which bears on this issue should be excluded unless it 

      interjects tangential and confusing elements which clearly outweigh 

      its relevance.

United States

 v. Collorafi, 876 F.2d 303, 305 (2d Cir. 1989).

      In protester cases, admissible evidence of willfulness includes:

      1.    Tax protest activities and philosophies.  

United States

 v.

            Eargle, 921 F.2d 56, 58 (5th Cir. 1991); 

United States

            v. Grosshans, 821 F.2d 1247, 1252 (6th Cir. 1987);

            

United States

 v. Bergman, 813 F.2d 1027, 1029 (9th Cir.

            1987); 

United States

 v. Turano, 802 F.2d 10, 11-12

            (lst Cir. 1986); United States v. Marchini, 797 F.2d

            759, 766 (9th Cir. 1986). [FN9]  But see United

            States v. Knapp, 25 F.3d 451, 456 n.1 (7th Cir. 1994)

            (declining to review propriety of court's instruction that tax

            protester status could be considered in determining willfulness

            because issue not raised below).

      2.    Filing blatantly false IRS Forms W-4.  

United States

 v.

            Johnson, 893 F.2d 451, 453 (1st Cir. 1990).  See

            also 

United States

 v. Brooks, 174 F.3d 950, 955 (8th

            Cir. 1999); 

United States

 v. Kassouf, 144 F.3d 952, 955

            (6th Cir. 1998); Hanson v. Commissioner, 975 F.2d 1150,

            1153 (5th Cir. 1993); 

United States

 v. Mal, 942 F.2d

            682, 685 & n.3 (9th Cir. 1991); 

United States

 v. Sloan,

            939 F.2d 499, 502 (7th Cir. 1991); 

United States

 v.

            Pabisz, 936 F.2d 80, 81 (2d Cir. 1991); 

United States

            v. Williams, 928 F.2d 145, 148-49 (5th Cir.

            1991); 

United States

 v. Connor, 898 F.2d

            942, 945 (3rd Cir. 1990); 

United States

 v. Johnson, 893

            F.2d 451, 453 (1st Cir. 1990); 

United States

 v.

            Schmitt, 794 F.2d 555, 560 (10th Cir. 1986); United

            States v. 

Ferguson

, 793 F.2d 828, 831 (7th Cir. 1986);

            Granado v. Commissioner, 792 F.2d 91, 93-94 (7th Cir.

            1986); 

United States

 v. Shivers, 788 F.2d 1046, 1048

            (5th Cir. 1986); 

United States

 v. Carpenter, 776 F.2d

            1291, 1295 (5th Cir. 1985); Zell v. Commissioner, 763

            F.2d 1139, 1146 (10th Cir. 1985); 

United States

 v.

            Williams, 644 F.2d 696, 701 (8th Cir. 1981).

      3.    Prior taxpaying history, such as the prior filing of valid tax

            returns followed by the filing of a protest return and receipt of a

            letter from the Internal Revenue Service telling the defendant that

            his return "did not comply with tax laws and might subject him to

            criminal penalties."  

United States

 v. Shivers,

            788 F.2d 1046, 1048 (5th Cir. 1986).  See also

            

United States

 v. Daniel, 956 F.2d 540, 543 (6th Cir.

            1992); 

United States

 v. Fingado, 934 F.2d 1163 (10th

            Cir. 1991); 

United States

 v. DeClue, 899 F.2d 1465

            (6th Cir. 1990); 

United States

 v. Poschwatta, 829 F.2d

            1477, 1483 (9th Cir. 1987); 
United States
 v. 

Upton

,

            799 F.2d 432, 433 (8th Cir. 1986); 

United States

 v.

            Green, 757 F.2d 116, 123-24 (7th Cir. 1985); United

            States v. Grumka, 728 F.2d 794, 796 (6th Cir. 1984);

            
United States
 v. 

Moore

, 627 F.2d 830, 832 (7th Cir.

            1980); 

Hayward

 v. Day, 619 F.2d 716, 717 (8th Cir.

            1980); 

United States

 v. Francisco, 614 F.2d 617, 618

            (8th Cir. 1980);  

United States

 v. Karsky, 610 F.2d

            548, 551 (8th Cir. 1979).

      4.    Subsequent taxpaying conduct.  Fed. R. Evid. 404(b); United

            States v. Bank of 
New England
, N.A., 821 F.2d 844, 858 (1st.

            Cir. 1987); 
United States
 v. 

Upton

, 799 F.2d 432, 433

            (8th Cir. 1986); 

United States

 v. Sempos, 772 F.2d 1,

            2 (1st Cir. 1985); 

United States

 v. Richards, 723 F.2d

            646, 649 (8th Cir. 1983); 

United States

 v. Serlin, 707

            F.2d 953, 959 (7th Cir. 1983); 

United States

 v.

            McCorkle, 511 F.2d 477, 479 (7th Cir. 1974).

      5.    The amount of a defendant's gross income. Fingado, 934

            F.2d at 1168; 

United States

 v. Bohrer, 807 F.2d 159,

            161-62 (10th Cir. 1987); 

United States

 v. Payne,

            800 F.2d 227 (10th Cir. 1986).  The higher the defendant's gross

            income, the less likely the defendant was unaware of the filing

            requirement and the more likely the defendant's failure was

            intentional rather than inadvertent.

      6.    Proof that knowledgeable persons warned the defendant of tax

            improprieties.  

United States

 v. Dack, 987 F.2d 1282,

            1285 (7th Cir. 1993); Fingado, 934 F.2d at 1168;

            

United States

 v. Collorafi, 876 F.2d 303, 305 (2d Cir. 1989);

            

United States

 v. Sempos, 772 F.2d 1, 2 (1st Cir. 1985);

            

United States

 v. Grumka, 728 F.2d 794, 797 (6th Cir.

            1984).

---

40.05 DEFENSES

40.05[1]  Good Faith 

      A defendant's conduct is not willful if the jury finds it resulted from

"ignorance of the law or a claim that because of a misunderstanding of the law,

he had a good faith belief that he was not violating any of the provisions of the

tax laws."  Cheek v. 
United States
, 498 

U.S.

 192, 202 (1991). 

Cheek claimed that he did not file tax returns because he believed that: (1) he

was not a taxpayer within the tax laws, (2) wages are not income, (3) the

Sixteenth Amendment did not authorize the taxation of individuals, and (4) the

Sixteenth Amendment was unenforceable.  Cheek, 498 

U.S.

 at 195. 

The Court explained that:

      In the end, the issue is whether, based on all the evidence, the 

      Government has proved that the defendant was aware of the duty at 

      issue, which cannot be true if the jury credits a good-faith 

      misunderstanding and belief submission, whether or not the 

      claimed belief is objectively reasonable.

Cheek, 498 

U.S.

 at 202 (emphasis added).  The Supreme Court held

the trial court's jury instructions that Cheek's good faith beliefs or

misunderstanding of the law would have to be objectively reasonable to negate

willfulness were erroneous, stating: 

      It was therefore error to instruct the jury to disregard evidence of 

      Cheek's understanding that, within the meaning of the tax laws, he was 

      not a person required to file a return or pay income taxes and that 

      wages are not taxable income, as incredible as such misunderstandings 

      of and beliefs about the law might be.

Cheek, 498 

U.S.

 at 203.

      The trial court did not err, however, in instructing the jury not to

consider Cheek's claims that tax laws are unconstitutional:

      We thus hold that in a case like this, a defendant's views about the 

      validity of the tax statutes are irrelevant to the issue of 

      willfulness, need not be heard by the jury, and if they are, an 

      instruction to disregard them would be proper.  For this purpose, it 

      makes no difference whether the claims of invalidity are frivolous or 

      have substance.

Cheek, 498 

U.S.

 at 206.  See also United

States v. Saussy, 802 F.2d 849, 853 (6th Cir. 1986); 

United States

v. Payne, 800 F.2d 227, 229 (10th Cir. 1986); 

United States

 v.

Mueller, 778 F.2d 539, 541 (9th Cir. 1985); 

United States

 v.

Latham, 754 F.2d 747, 751 (7th Cir. 1985); 

United States

 v.

Burton
, 737 F.2d 439, 442 (5th Cir. 1984); 

United States

 v.

Kraeger, 711 F.2d 6, 7 (2d Cir. 1983); 

United States

 v.

Pilcher, 672 F.2d 875, 877 (11th Cir. 1982); 

United States

 v.

Moore, 627 F.2d 830, 833 n.l (7th Cir. 1980); 

United States

 v.

Karsky, 610 F.2d 548, 550 (8th Cir. 1979).

      The 

Cheek Court

 stated that a jury considering a good faith

belief claim:

      would be free to consider any admissible evidence from any source 

      showing that . . . [the taxpayer] was aware of his . . . [duties under 

      the tax laws], including evidence showing his awareness of the Code or 

      regulations, of court decisions rejecting his interpretations of the 

      tax law, of authoritative rulings of the Internal Revenue Service, or 

      any contents of the personal income tax return forms and accompanying 

      instructions . . . .

Cheek, 498 

U.S.

 at 202.

      In determining whether a subjective good faith belief was held, a jury

should not be precluded from considering the reasonableness of the taxpayer's

interpretation of the law.

      [T]he more unreasonable the asserted beliefs or misunderstandings are, 

      the more likely the jury will consider them to be nothing more than 

      simple disagreement with known legal duties imposed by the tax laws 

      and will find that the Government has carried its burden of proving 

      knowledge.

Cheek, 498 

U.S.

 at 203-04.  After remand and retrial, the Seventh

Circuit upheld Cheek's conviction, 

United States

 v. Cheek, 3 F.3d

1057 (7th Cir. 1993), finding that the trial court's instruction that the jury

could "consider whether the defendant's stated belief about the tax statutes was

reasonable as a factor in deciding whether he held that belief in good-faith" was

proper.  Cheek, 3 F.3d at 1063. 

See also 

United States

 v. Becker, 965 F.2d

383, 388 (7th Cir. 1992); 

United States

 v. Powell, 955 F.2d 1206,

1212 (9th Cir. 1992) (jury may consider "the reasonableness of the interpretation

of the law in weighing the credibility" of defendants' subjective belief that

they were not required to file tax returns). 

      Tax protesters often claim to believe, allegedly based on a careful study

of legal decisions, statutes, legal treatises, and the like, that they are not

required to file returns or pay taxes, and attempt to introduce such materials

into evidence.  See, e.g., 

United States

 v.

Bonneau, 970 F.2d 929, 931 (1st Cir. 1992); 

United States

 v.

Willie, 941 F.2d 1384, 1391 (10th Cir. 1991).  In order to introduce such

materials into evidence, the taxpayer must lay a sufficient foundation of

reliance.  Even if he lays such a foundation, the materials may not be admitted

into evidence because of competing interests.  For example, such material may:

(1) confuse the jury as to the law (see 

United States

 v.

Stafford, 983 F.2d 25, 28 n.14 (5th Cir. 1993); 

United States

 v.

Payne, 978 F.2d 1177, 1181-82 (10th Cir. 1992);

United States

 v. Barnett, 945 F.2d 1296, 1301 (5th Cir. 1991);

Willie, 941 F.2d at 1395-97; 

United States

 v.

Gleason, 726 F.2d 385, 388 (8th Cir. 1984); 

United States

 v.

Kraeger, 711 F.2d 6, 7-8 (2d Cir. 1983)), (2) assist a defendant who

wishes to undermine the authority of the court, and (3) turn the trial into a tax

protester circus (see Willie, 941 F.2d at 1395 &

n.8).

      If such materials are not admitted into evidence, the defendant can still

convey his core defense to the jury through testimony about his beliefs and how

he arrived at them.  See Barnett, 945 F.2d at 1301;

United States

 v. Hairston, 819 F.2d 971, 973 (10th Cir. 1987).  It

is for the district court to weigh the various competing interests and determine,

in its discretion, whether, to what extent, and in what form, legal materials

upon which a defendant claims to have relied should be admitted in any given

case.  See Willie, 941 F.2d at 1398; Fed. R. Evid.

403. [FN10]

      A prosecutor should not seek to exclude such evidence in all situations. 

See 

United States

 v. Gaumer, 972 F.2d 723, 725

(6th Cir. 1992) (error not to allow defendant to read relevant excerpts of court

opinions and Congressional Record upon which he assertedly relied in determining

that he was not required to file tax returns); 

United States

 v.

Powell, 955 F.2d 1206, 1214 (9th Cir. 1992) ("In section 7203

prosecutions, statutes or case law upon which the defendant claims to have

actually relied are admissible to disprove that element [willfulness] if

the defendant lays a proper foundation which demonstrates such reliance."

(emphasis in original)).  Restraint should be exercised where appropriate so as

not to jeopardize convictions on appeal.  This is particularly true where the

defendant has made a specific claim of reliance on a relatively limited amount

of material.  See Barnett, 945 F.2d at 1301 n.3

(noting that exclusion of specific proffer of one or two sentences from an IRS

handbook may have been error, albeit harmless, and contrasting this specific

proffer with the "voluminous,' cover the waterfront' exhibits" that defendant had

originally offered).  In such a situation, the prosecutor should consider

requesting a limiting instruction rather than opposing the admission of such

evidence. [FN11]

      For examples of jury instructions on willfulness and the good faith defense

that have been upheld, see 

United States

 v. Dykstra,

991 F.2d 450, 452-53 (8th Cir. 1993); 

United States

 v. Dack,

987 F.2d 1282, 1285 (7th Cir. 1993); 
Stafford
, 983 F.2d at

27; 

United States

 v. Becker, 965 F.2d 383, 388 (7th Cir. 1992);

United States

 v. Droge, 961 F.2d 1030, 1037-38 (2d Cir. 1992);

United States

 v. Masat, 948 F.2d 923, 931-32 (5th Cir. 1991);

United States

 v. Fingado, 934 F.2d 1163, 1166-67 (10th Cir. 1991);

United States

 v. Collins, 920 F.2d 619, 622-23 (10th Cir. 1990).

      40.05[1][a]  Reliance on Return Preparer/Accountant

      "Reliance on a qualified tax preparer is an affirmative defense to a charge

of willful filing of a false tax return."  

United States

 v.

Charroux, 3 F.3d 827, 831 (5th Cir. 1993) (citation omitted).

      Reliance on the advice of third parties, such as preparers or accountants,

may negate the element of willfulness in prosecutions for: (1) tax evasion in

violation of 26 U.S.C. § 7201 (

United States

 v. Fawaz, 881

F.2d 259, 265 (6th Cir. 1989)); (2) willful failure to pay, keep records, or

supply required information, in violation of 26 U.S.C. § 7203 (United

States v. Civella, 666 F.2d 1122, 1126 (8th Cir. 1981); United

States v. Wilson, 550 F.2d 259, 260 (5th Cir. 1977)); (3) tax perjury,

in violation of 26 U.S.C. § 7206(1) (

United States

 v.

Brimberry, 961 F.2d 1286, 1290 (7th Cir. 1992)).

      In order to claim successfully third-party reliance, a defendant must show

that he truthfully and completely: (1) disclosed all relevant facts to the

preparer or accountant, and (2) in good faith relied on the preparer's or

accountant's advice. 

United States

 v. Masat, 948 F.2d 923, 930 (5th

Cir. 1991); 
United States
 v. 

Wilson

, 887 F.2d 69, 73 (5th Cir.

1989); 

United States

 v. Michaud, 860 F.2d 495, 500 (1st Cir. 1988);

United States

 v. Meyer, 808 F.2d 1304, 1306 (8th Cir. 1987);

United States

 v. Whyte, 699 F.2d 375, 379 (7th Cir. 1983);

United States

 v. Samara, 643 F.2d 701, 703-704 (10th Cir. 1981);

United States

 v. Pomponio, 563 F.2d 659, 662 (4th Cir. 1977);

United States

 v. Lisowski, 504 F.2d 1268, 1272 (7th Cir. 1974);

United States

 v. Stone, 431 F.2d 1286, 1289 (5th Cir. 1970).  In

other words, "to avail himself of the defense, a defendant must demonstrate that

he provided full information to the preparer and then filed the return without

having reason to believe it was incorrect."  Charroux, 3 F.3d at

831 (citation omitted).

      "In a tax evasion case in which the defendants assert that blind reliance

on their accountant, not criminal intent, caused an under reporting, the critical

datum is not whether the defendants ordered the accountant to falsify the return,

but, rather, whether the defendants knew when they signed the return that it

understated their income."  

United States

 v. Olbres, 61 F.3d 967,

971 (1st Cir. 1995).  A defendant who knew the return's contents and knews that

the income figure reported on the return was understated, cannot claim to have

blindly relied on a preparer.  

Id.

  "A jury may permissibly infer

that a taxpayer read his return and knew its contents from the bare fact that he

signed it."  

Id.

      Good faith reliance on third parties is an issue to be determined by the

jury.  Meyer, 808 F.2d at 1306.  Therefore, a jury instruction on

this issue should be submitted if credible evidence of third-party reliance is

presented at trial.  A defendant who demonstrates that he (1) made full

disclosure of all pertinent facts, and (2) relied in good faith on this advice

is entitled to a reliance-on-advice-of-accountant jury instruction.  United

States v. Ford, 184 F.3d 566, 579 (6th Cir. 1999), cert.

denied, 528 

U.S.

 1161 (2000).  A reliance-on-advice-of-accountant

instruction may be warranted "even without per se testimony that the

defendant relied on the accountant's advice, so long as the circumstances support

an inference that he did so rely."  

Id.

  See also 

United States

 v. 

Duncan

, 850 F.2d 1104, 1115-19 (6th Cir. 1988).

      Where there is no evidentiary basis for a reliance defense, however, a

defendant is not entitled to a jury instruction.  

United States

 v.

Evangelista, 122 F.3d 112, 118 (2d Cir. 1997).

      The defendant's education, sophistication, and degree of reliance are

relevant to a reliance defense.  See 

United States

 v. Estate Preservation

Services, 202 F.3d 1093, 1103 (9th Cir. 2000) (defense unavailable to a

physicist who received training in taxation at the University of Southern

California
 
Law
 
School

).  A defendant who seeks advice, but chooses to: (1) ignore

advisors skeptical as to the legality of his statements, and (2) follow the

advice of others who "unquestioningly agree[d] to further his scheme" will not

succeed in asserting third-party reliance.  Estate Preservation

Services, 202 F.3d at 1103.

      Furthermore, a taxpayer may not successfully assert this defense when

certain information -- such as filing deadlines -- is common knowledge. 

United States
 v. Boyle, 469 

U.S.

 241, 251-52 (1985).

      40.05[1][b]  Reliance on Advice of Counsel

      Reliance on the advice of an attorney in the preparation of incomplete or

"Fifth Amendment" returns is a defense raised by some protesters.  If the

evidence presented at trial is sufficient to warrant it, the court should

instruct the jury that the defendant's conduct is not "willful" if he acted with

a good faith misunderstanding based on the advice of counsel.  See

United States

 v. Becker, 965 F.2d 383, 387-88 (7th Cir. 1992)

(upholding refusal to give reliance instruction where there was no testimony

that: (1) defendant told lawyer everything about his situation, (2) attorney gave

defendant specific advice in response, and (3) defendant followed that advice);

United States v. Benson, 941 F.2d 598, 615 (7th Cir. 1991) (proper

to instruct jury that reliance on counsel was a "circumstance" to consider in

determining willfulness); 

United States

 v. Snyder, 766 F.2d 167,

169 (4th Cir. 1985) (testimony not sufficient to justify instruction concerning

good faith reliance).

      The Seventh Circuit, in 

United States

 v. Cheek, 3 F.3d 1057

(7th Cir. 1993), used the following test to determine whether Cheek was entitled

to a reliance on counsel defense instruction:

      In order to establish an advice of counsel defense, a defendant must 

      establish that: " (1) before taking action, (2) he in good faith 

      sought the advice of an attorney whom he considered competent, (3) for 

      the purpose of securing advice on the lawfulness of his possible 

      future conduct, (4) and made a full and accurate report to his 

      attorney of all material facts which the defendant knew, (5) and acted 

      strictly in accordance with the advice of his attorney who had been 

      given a full report."

Cheek, 3 F.3d at 1061 (citing Liss v. United States,

915 F.2d 287, 291 (7th Cir. 1990)).  The Seventh Circuit held that Cheek was not

entitled to the instruction because he did not seek advice on possible future

conduct, but "merely continued on a course of illegal conduct begun prior to

contacting counsel".  Cheek, 3 F.3d at 1062.  Cheek did not make

a full disclosure to his attorney nor follow his attorney's advice that he should

obey the tax laws until told by a court that the laws were not valid. 

Cheek, 3 F.3d at 1062.

      40.05[1][c]  No Defense in Non-Tax Cases

      In Cheek v. United States, 498 U.S. 192 (1991), the Supreme

Court carefully limited the "good faith" defense to tax cases, emphasizing "the

complexity" of the Internal Revenue Code, 498 U.S. at 200, the

"average citizen's" difficulty in comprehending duties it imposes, 498 U.S. at

199, and the construction of "willfulness" in the tax context, 498 U.S. at 201.

      Various appellate courts have confirmed Cheek's limited

application.  See United States v. Boots, 80 F.3d

580, 594 (1st. Cir. 1996) ("defendant's initially weak contention [that

Cheek defense is available in wire fraud case] is not even arguably

tenable"); In re Air Disaster at Lockerbie Scotland, 37 F.3d 804,

818 (2d Cir. 1994) ("our subsequent decisions and those of other courts

acknowledge Cheek's limited application"); United States v.

Gay, 967 F.2d 322 (9th Cir. 1992) (mail and property fraud); United

States v. Chaney, 964 F.2d 437, 453-54 (5th Cir. 1992)

(false statements on bank records).  But see

Ratzlaf v. United States, 507 U.S. 1060 (1993) (The word "willfully" in

31 U.S.C. § 5322(a) requires that the government prove in a prosecution for

structuring cash transactions that the defendant knew that structuring is

unlawful). [FN12]

40.05[2]  Constitutional Challenges

      40.05[2][a]  Fourth Amendment -- Unreasonable Search and Seizure

      The statutory requirement to file tax returns does not violate the Fourth

Amendment.  Flint v. Stone Tracy Co., 220 U.S. 107, 177 (1911).

      Likewise, the government's use at trial of a defendant's filed income tax

returns or Forms W-4 does not violate the Fourth Amendment right against

unreasonable searches and seizures.  United States v. Amon,

669 F.2d 1351, 1358 (10th Cir. 1981); United States v. Warinner,

607 F.2d 210, 212-13 (8th Cir. 1979).

      The IRS has authority to obtain evidence through the execution of search

warrants.  United States v. Rosnow, 977 F.2d 399, 409 (8th Cir.

1992).  In Rosnow, the court noted that "Congress gave the IRS wide

authority to conduct criminal investigations, including the execution of search

warrants, regarding those individuals suspected of violating the tax laws." 

Rosnow, 977 F.2d at 399.  See also Donaldson v. United

States, 400 U.S. 517, 522, 537 (1971) (IRS third-party summons do not

violate Fourth Amendment); United States v. Scott, 975 F.2d 927,

928 (1st Cir. 1992) (IRS systematic search, seizure, and reconstruction of

shredded documents from garbage bag in front of defendant's home did not violate

Fourth Amendment); United States v. Dunkel, 900 F.2d 105, 106

(7th Cir. 1990), vacated on other grounds, 111 S.Ct. 747 (1991)

(use of financial records obtained from taxpayer's dumpster does not violate

Fourth Amendment).

      40.05[2][b]  Fifth Amendment -- Due Process; Freedom from

      Self-incrimination

      Tax protesters sometimes claim that taxes constitute a "taking" of property

without due process of law, in violation of the Fifth Amendment.  Schiff

v. United States, 919 F.2d 830, 832 (D.Conn. 1989); Irwin Schiff, The

Federal Mafia: How It Illegally Imposes and Unlawfully Collects Income Taxes

21, 26 (1992).  But the Supreme Court held that the government's need for

revenues justifies use of summary procedures to collect taxes.  Phillips

v. Commissioner, 283 U.S. 589, 595 (1931).  The Internal Revenue Code

itself provides methods to ensure due process to taxpayers: (1) "the refund

method," set forth in 26 U.S.C. § 7422(e) and 28 U.S.C. §§ 1341,

1346(a), whereby a taxpayer must pay the full amount of the tax and then sue in

district court or in the Federal Court of Claims for a refund, and (2) "the

deficiency method," set forth in 26 U.S.C. § 6213(a), whereby a taxpayer

need not pay the contested tax if he immediately petitions U.S. Tax Court to

redetermine the deficiency.  Courts have found both methods to provide due

process.  Flora v. United States, 362 U.S. 145 (1960);

Schiff, 919 F.2d at 832.

      To similar effect, tax protesters often submit tax returns on which they

refuse to provide any financial information, asserting their Fifth Amendment

right against self-incrimination.  U.S. Const. amend. V.  However, the Supreme

Court has long held that the statutory requirement to file tax returns does not

violate the Fifth Amendment.  Flint v. Stone Tracy Co., 220 U.S.

107, 177 (1911).

      Section 6702 of Title 26 of the United States Code ("Frivolous Income Tax

Returns") imposes a civil penalty against any individual who, motivated by "a

position which is frivolous" or "a desire (which appears on the purported return)

to delay or impede the administration of Federal income tax laws," files an

incomplete return.  Courts repeatedly have found Fifth Amendment privilege claims

on incomplete forms frivolous.  See Sochia v. Commissioner,

23 F.3d 941 (5th Cir. 1994) (return frivolous where defendant supplied only names

and claimed Fifth Amendment privilege by inserting phrase: "Object -- Fifth

Amendment"); Mosher v. IRS, 775 F.2d 1292 (5th Cir. 1985) (taxpayer

struck jurat from return); Eicher v. United States, 774 F.2d 27

(1st Cir. 1985) (blanket claim of privilege on return

frivolous); Ricket v. United States, 773 F.2d 1214 (11th Cir. 1985)

(return containing only signature and date, and invoking privilege was

"frivolous"); Peeples v. Commissioner, 771 F.2d 77 (4th Cir. 1984)

(words "refused" and Fifth Amendment claim rendered return frivolous);

 Hudson v. United States, 766 F.2d 1288 (9th Cir. 1985)

(taxpayer's statement that complete return could be used to prosecute false

claims action insufficient to invoke Fifth Amendment protection).

      Return forms containing little or no financial information from which a tax

can be computed are sometimes referred to as "Fifth Amendment returns."  The

filing of a so-called Fifth Amendment return may constitute an affirmative act

for the purpose of proving evasion.  See United States v.

Waldeck, 909 F.2d 555, 559 (1st Cir. 1990) ("filing of returns containing

only name, a signature, a figure for federal income tax withheld, asterisks at

numbered lines in lieu of information and the statement '[t]his means specific

exception is made under the Fifth Amendment, U.S. Constitution,'" is an

affirmative act of evasion); United States v. DeClue, 899 F.2d

1465, 1471 (6th Cir. 1990) (filing of return with no financial information, on

which was typed, "object: self-incrimination," is affirmative act of evasion).

      In United States v. Sullivan, 274 U.S. 259 (1927), the Court

held that the privilege against compulsory self- incrimination is not a defense

to prosecution for failing to file.  The Court indicated, however, that the

privilege could be claimed against specific disclosures sought on a return,

saying (274 U.S. at 263):

      If the form of return provided called for answers that the defendant 

      was privileged from making he could have raised the objection in the 

      return, but could not on that account refuse to make any return at 

      all.

See also Garner v. United States, 424 U.S.

648, 650 (1976).

      Sullivan is frequently cited for the proposition that a

taxpayer may not use the Fifth Amendment to justify the failure to file any

return at all.  See, e.g., Garner,

424 U.S. at 650; United States v. Dack, 987 F.2d 1282, 1284

(7th Cir. 1993); United States v. Wunder, 919 F.2d 34, 37 (6th Cir.

1990); United States v. Poschwatta, 829 F.2d 1477, 1482 n. 3

(9th Cir. 1987); United States v. Leidendeker,

779 F.2d 1417, 1418 (9th Cir. 1986); United States v. Stillhammer,

706 F.2d 1072, 1076-77 (10th Cir. 1983); United States v. Pilcher,

672 F.2d 875, 877 (11th Cir. 1982); United States v. Lawson,

670 F.2d 923, 927 (10th Cir. 1982) (cases cited); United States v.

Reed, 670 F.2d 622, 623-24 (5th Cir. 1982); United States v.

Booher, 641 F.2d 218, 219 (5th Cir. 1981); United States v.

Edelson, 604 F.2d 232, 234 (3d Cir. 1979).

      A taxpayer may refuse to answer specific questions or disclose specific

information  if such disclosure would be incriminating.  The courts have

uniformly held, however, that disclosure of routine financial information on a

tax return ordinarily does not, in itself, incriminate an individual, and does

not violate one's Fifth Amendment right against self-incrimination. 

Garner, 424 U.S. at 651; California v. Byers, 402

U.S. 424, 428, 430 (1971) ("the mere possibility of incrimination is insufficient

to defeat the strong policies in favor of a disclosure"); United States v.

Warner, 830 F.2d 651, 653-54 (7th Cir. 1987); United States v.

Heise, 709 F.2d 449, 451 (6th Cir. 1983); United States v.

Drefke, 707 F.2d 978, 982-83 (8th Cir. 1983); Lawson,

670 F.2d at 927; Reed, 670 F.2d at 623-24; United States v.

Carlson, 617 F.2d 518 (9th Cir. 1980) (no valid Fifth Amendment privilege

excusing failure to file Form 1040 to cover up false Form W-4 previously filed

by defendant); United States v. Neff, 615 F.2d 1235, 1238-41

(9th Cir. 1980); United States v. Schiff, 612 F.2d 73, 77-83

(2d Cir. 1979); Edelson, 604 F.2d at 234; United States v.

Irwin, 561 F.2d 198, 201 (10th Cir. 1977).  See also

United States v. Saussy, 802 F.2d 849, 854-55 (6th Cir. 1986);

United States v. Green, 757 F.2d 116 n.7 (7th Cir. 1985) (affirming

use of jury instruction that reporting income from legitimate activities would

not fall within the Fifth Amendment privilege).

      In appropriate situations, a Fifth Amendment claim may be asserted as to

specific line items on tax forms.  Sullivan, 274 U.S. at 263;

United States v. Harting, 879 F.2d 765, 770 (10th Cir.