United States v. BellUnited States v. Bell
This is аn appeal from a District Court order directing appellant Bell to comply with an Internal Revenue summons issued under
The principal issue presented on this appeal is whether the sole owner of a corporation can assert his personal privilege against self-incrimination as a valid ground for refusing to produce corporate records.1 We have already answered this question in the negative. Wild v. Brewer, 329 F.2d 924 (9th Cir.) cert. denied, 379 U.S. 914, 85 S.Ct. 262, 13 L.Ed.2d 185 (1964). See Grant v. United States, 227 U.S. 74, 33 S.Ct. 190, 57 L.Ed. 423 (1913); Fineberg v. United States, 393 F.2d 417, 420 (9th Cir. 1968). We find no reason to re-examine our decision in Wild v. Brewer, supra, on the basis of subsequent decisions in other cases cited by appellants.
Appellаnts claim that enforcement of the summons would offend the Fourth Amendment because it was issued for the purpose of collecting evidence for use in a criminal tax fraud prosecution. They argue that the District Court erred in restricting discovery and cross-examination attempting to elicit proof of the Government‘s purpose. But no criminal case is actually pending against Bell, and the record makes it сlear that one objective of the present investigation is to determine whether appellants are civilly liable for a tax or a tax plus penalty. Where the Government is attempting to collect revenue under the tax laws, and no criminal case is actually pending against the taxpayer, a summons to examine the taxpayer‘s records obtained pursuant to
Appellants also argue that restrictions on their discovery prevented them from proving that the summons constituted a second examination of their rеcords contrary to the provisions of
We find no mеrit in appellants’ contentions that for various other reasons issuance of the summons constituted an abuse of process. The record establishes ample justification for the issuance of the summons: for some time the Internal Revenue Service has been unsuccessfully attempting to inspect the records of the corporation for the purpose of making a normal investigation of the company‘s returns and of reconciling apparent discrepancies between the returns and the сompany‘s bank deposits.
Appellant Bell‘s self-incrimination challenge to the District Court‘s requirement that he personally appear before a Special Agent of the Internal Revenue Serviсe for the purpose of giving oral testimony is premature at this time. See Communist Party of United States v. Subversivе Activities Control Board, 367 U.S. 1, 106-109, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961); Chapman v. Goodman, 219 F.2d 802, 806-807 (9th Cir. 1955); United States v. Roundtree, 420 F.2d 845, 852 (5th Cir. 1969). Appellant must present himself for questioning, and as to eаch question elect to raise or not to raise the defense. The District Court may then determine by considering each question whether, in each instance, the claim of self-incrimination is well-founded. See United States v. Roundtree, supra, and authorities cited therein.
Appellants’ remaining assignments of error are without merit. The factual and legal issues contested in this case were adequately presented to the trial court in pre-trial memoranda and oral argumеnt, and appellants have failed to show that they were prejudiced by the court‘s denial of a continuance or its refusal to receive their written brief at the conclusion of the trial. Since aрpellants were accorded all of the procedural rights they were entitled to under the Fedеral Rules of Civil Procedure, there was no error in the employment of a show cause procedure by the District Court to expedite this summons enforcement proceeding. See Wild v. United States, 362 F.2d 206, 209 (9th Cir. 1966); McGarry‘s, Inc. v. Rose, 344 F. 2d 416, 418 (1st Cir. 1965).
Affirmed.