650 P.2d 76 | Or. | 1982
Defendant appeals from the tax court’s issuance of a writ of mandamus ordering him to file individual income tax returns for the years 1977 to 1980. Defendant seeks to have the writ quashed on the grounds that he is not a person required to file. Defendant further claims that the standard applied by the tax court to deny his assertion of the privilege against self-incrimination under the Fifth Amendment to the United States Constitution was erroneous. Finally, defendant claims that a writ of mandamus cannot issue ordering the filing of a tax return.
The defendant when he became an ordained minister of the Life Science Church took a vow of poverty which included a gift or assignment of any future income. Therefore, he contends that any income earned after that date is tax exempt. The failure to so find, he argues, constitutes a violation of the establishment clause of the First Amendment of the United States Constitution and Article 1, Sections 2 and 3 of the Oregon Constitution.
Defendant further claims that the tax court applied an erroneous standard to his assertion of the privilege against self-incrimination under the Fifth Amendment of the United States Constitution.
Affirmed.
Taxpayer also claims that the tax court judge’s personal knowledge of him denied taxpayer a fair trial. Personal knowledge does not lead to denial of a fair trial unless prejudice is shown. No prejudice was shown in this case.
The First Amendment to the United States Constitution provides in pertinent part:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; * * *”
Article I, Section 2 of the Oregon Constitution provides:
“All men shall be secure in the Natural right to worship Almighty God according to the dictates of their own consciences.”
Article I, Section 3 of the Oregon Constitution provides:
“No law shall in any case whatever control the free exercise, and enjoyment of religeous (sic) opinions, or interfere with the rights of conscience.”
The Fifth Amendment to the United States Constitution provides:
“...nor shall any person...be compelled in any criminal case to be a witness against himself * * *”
The Oregon Constitution, Art. 1, section 12 guarantees that:
“No person shall...be compelled in any criminal prosecution to testify against himself.”
The tax court judge made the following comments regarding defendant’s contention:
“...I’m following those Fifth Amendment cases, of which there are a great number and which are not deemed to be contradictory to those that you have cited to me, and I’ll quote from one of them.(sic) U.S. v. Irwin, 561 F2d 198,*481 in the 10th circuit, in which the U.S. Supreme Court denied certiorari. . . in that case it was made very clear, and this is one of many cases, that while all of us have the right to cite the Fifth Amendment it doesn’t do us any good unless the valid claim of privilege is based upon a real possibility that submitting answers will subject the taxpayer to criminal prosecution. Can you give me any slightest evidence for. . . that anybody has told you that you are now subject to criminal prosecution under your failure to file these returns, federal or state?
* *
Has anybody even hinted at it, or are you engaging in something like bootlegging or running drugs so that you have real fear that you’re going to be subject to criminal investigation?
“You’re just standing there saying there’s something in my past and I’m going to take the Fifth. You understand, of course, as a citizen of the country that if you were approved in coming before this Court without any scintilla of evidence that there is a possible criminal charge respecting your income tax returns hovering over your head that all of us could do the same thing.
c<* * .*
“To be placed in a position of being charged as a criminal is a very serious matter and not lightly done and people who take the Fifth Amendment must do it with equal gravity. It must be something that’s imminent, impending, a natural consequence of what they’re doing.”