No broad Fifth Amendment Right to avoid complying with IRS summons

August 7, 2021

On May 5, 2020, the United States District Court for the Eastern District of Texas signed an order holding that there is no
broad fifth amendment right to avoid being compelled to comply with an IRS summons.

Brian Torrance failed to comply with an IRS summons directing Torrance to appear before an IRS agent on a scheduled
date to testify and produce a variety of different records for examination. After the court ordered summons, Torrance
appeared and asserted a broad Fifth Amendment privilege, claiming that all responsive information is privileged because
“any of the information surrendered could be used against [him] criminally.”

Citing Doe v United States, 487 U.S. 201, 2017 (1998) that “the Fifth Amendment would not be violated by the fact alone
that [documents] on their face might incriminate the taxpayer… Accordingly, for a communication to be privileged under
the Fifth Amendment, it must be testimonial, incriminating, and compelled.”

The court found that Torrance failed to demonstrate any specific documents with privileged information and he did not
produce a privileged log identifying which documents were claimed to contain privileged information. “Rather, he has
simply made a blanket assertion of privilege without any particularized showing. Consequently, he has failed to meet his
burden of showing the specific communications are privileged under the Fifth Amendment.”

The court granted the government’s motion and dismissed Torrance’s motion to dismiss. Torrance was ordered to
produce all requested documents and information and produce a privilege log with descriptions of the nature of the
documents to allow the government to assess the privilege claims.

Taxpayers attempting to asset privilege in response to an IRS summons must be careful to properly invoke privilege.
They need to have a privileged log and be prepared to demonstrate which documents are privileged without revealing
privileged information


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