My chronicle of how the IRS and Tax Court affect taxpayers' daily lives.

See below for important disclosures.

Thursday, October 1, 2009

Couple under criminal investigation fail to quash a subpoena because they didn't state a claim

A couple, Kenneth & Deborah Hibben were denied a motion to quash the IRS's attempt to examine information held by a third-party bookkeeper*.  When a subpoena is issued, the burden of proof falls on the recipient of the subpoena to prove to the court why the subpoena should not be honored. 

The taxpayers made two arguments:
  • That they were not persons that fall under the IRS's summons authority; and,
  • The IRS's authority is too broad and violates the taxpayer's 4th amendment rights against unlafwul search and siezure
Both of these arguments are elementary and unrealistic.  The Treasury Secretary (or his designees) are allowed by US Code “For the purpose of … determining the liability of any person for any internal revenue tax … the Secretary authorized … [t]o summon … any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for the tax.”

Secondly, it is important, when debating matters of constutionality, to review Supreme Court cases that might be relevent.  After all, the Supreme Court is the SUPREME authority when it comes to constitutionality.  Donaldson v. United States, United States v. Miller, Fisher v. United States, and Hogan v. United States are all clear in their support of the IRS's ability to retrieve documentation that may assist them in determining a proper tax liability. 

in United States v. Bsiceglia, the court acknowledged that, given our tax system's reliance on self-reporting, some persons will try to outwit the system:

Thus, § 7601 gives the Internal Revenue Service a broad mandate to investigate and audit ‘persons who may be liable’ for taxes and § 7602 provides the power to ‘examine any books, papers, records or other data which may be relevant … and to summon … any person having possession … of books of account … relevant or material to such inquiry.’ Of necessity, the investigative authority so provided is not limited to such situations in which there is probable cause, in the traditional sense, to believe that a violation of the tax law exists. United States v. Powell, 379 U.S. 48, 57 (1964). The purpose of the statutes is not to accuse, but to inquire (Emphasis added). Although such investigations unquestionably involve some invasion of privacy, they are essential to our self-reporting system, and the alternatives could well involve far less agreeable invasions of house, business, and records.
Aaron's Take: While I greatly respect encourage the taxpayer's ability to protest what they deem to unfair rules and regulations, it is best to work with a professional to determine what arguments actually make sense, and what arguments are useless drivel.  Too many taxpayers go to tax court Pro Se, ill prepared, and do nothing but waste the time of the court.  If you have a genuine concern, find an Enrolled Agent or CPA that is certified to practice before the Tax Court (USTCP) or a tax lawyer that will do more for you than take a fee.

*(Kenneth A. Hibben and Deborah A. Hibben, Petitioners v. United States of America, Respondent., U.S. District Court, S.D. Ohio, 2009-2 U.S.T.C)

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Aaron Blau, E.A. is the Vice President of the Central Arizona Chapter of Enrolled Agents and a member of the Government Relations Committee of the National Association of Enrolled Agents. The opinions and ideas expressed here are in no way representative of the official position of the National Association of Enrolled Agents, Arizona Society of Enrolled Agents or the Central Arizona Chapter of Enrolled Agents.

For official comments, please e-mail NAEA Director of Communications at or Arizona Society president

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