raised the question of privilege. The Court of Appeals held that the accountant was required to produce the taxpayer's books and records even though it should be considered that the relation between taxpayers and accountants were confidential. The Court said, at page 739:
'It seems clear, therefore, that, even if we should consider the relation between a taxpayer and his certified public accountant as confidential as that between client and attorney, the accountant would, nevertheless, be required to produce the books and records of the taxpayer.'
In the Application of House, supra, Judge Murphy said of the Falsone case, 144 F.Supp. at page 103:
'All that that case decides is that there is no accountant-client privilege comparable to the attorney-client privilege in the federal courts when a federal statute requires disclosure.'
This Court cannot place such an interpretation upon the Falsone decision especially in view of the Court's reasoning that accountants are admitted to practice before the Treasury Department the same as attorneys with the same rights and privileges.
In 1955, Judge Bootle, in the District Court, M. D. Georgia, in United States v. Willis, 145 F.Supp. 365, 368, held that the privilege against self-incrimination did not apply to such records required by law to be kept and that the attorney could not claim it on behalf of his client. At page 368, Judge Bootle held that the attorney, where the client is not a party to the proceedings, may not claim the client's privilege under the Fifth Amendment against self-incrimination. Then the Court went on to say:
'But even if we were to rule that the attorney can make for his client the claim of privilege against self-incrimination under the Fifth Amendment, such claim in this case would not prevail. As was pointed out in the Falsone case, supra, 26 U.S.C.A. § 54(a) requires the taxpayer to keep records and the Commissioner, for the purpose of ascertaining the correctness of any return, is authorized by any officer or employee of the Bureau to examine the taxpayer's books and records and to require the attendance of the person rendering the return and the taking of his testimony, 26 U.S.C.A. § 3614. The Falsone case points out further that statutes granting such authorities have been held constitutional as against the contentions that they provide for unreasonable searches and seizures and compel the taxpayer to be a witness against himself.'
In 1956, Judge Kaufman in the Application of Daniels, D.C., 140 F.Supp. 322, made a fine review of this question and while holding therein that the individual in question, a corporate officer and stockholder, did not have to comply with a summons it was solely because he, personally, was under criminal investigation for his individual participation in the operation of the corporation in question. There Judge Kaufman pointed out, at page 327:
'These decisions make it clear that the privilege of the Fifth Amendment does not rest upon an individual's absolute title to the documents in question; rather it rests upon his legitimate and personal possession.' (Emphasis supplied.)
In the case at bar the possession of the work papers by Tomaselli is not a personal one but clearly a representative one as an attorney holding for a client.
In 1956 the Court of Appeals for the Eighth Circuit in the matter of Sale v. United States, 228 F.2d 682, held that no privilege existed between an accountant and clients to preclude production of accountant's work papers by an attorney. There the Court said, at page 686:
'The District Court held that the work papers the Special Agent was seeking 'are and were at all times the property of the accountant, Max Rosenbaum.' The evidence on the ownership of the work papers is conflicting. There is evidentiary support for the court's finding. The work papers had remained in the accountant's possession from 1949 to 1953 and had been kept in the accountant's office with similar work papers arising out of other transactions. We are unable to say that the court's decision on this issue was clearly erroneous. Since the court found that the work papers were the property of the accountant and not the property of the taxpayers, the issue of attorney-client privilege does not arise. No privilege exists between an accountant and his client which would preclude the production of the accountant's work papers. Falsone v. United States, supra. The court committed no error in ordering the appellant to produce the accountant's work papers.' (Emphasis supplied.)
In failing to follow Sale v. United States, supra, Judge Murphy, in the Application of House, supra, determined that the facts before him were not similar to those of the Sale case. He distinguishes the cases on the basis of the holding in the Sale case by the District Court and the Court of Appeals. The distinction he draws is that as a matter of fact the work papers of the accountant regarding the taxpayer's return in the Sale case were the property of the accountant while in the matter before him the work papers were the property of the taxpayers, apparently raising the question of ownership of the work papers. This Court has a great deal of difficulty in determining whether this question is one of fact or one of law, but it seems only logical that, inasmuch as the Court of Appeals in the Sale case has affirmed the finding that the work papers are the property of the accountant, this finding should point the way, so to speak, for a District Court that is confronted with a case of similar facts, as the Court is here, unless and until a higher Court in this Circuit has held otherwise, or the facts of the particular matter before the Court clearly demonstrate that the work papers are the property of the taxpayers. In the present matter this is not the feeling of this Court, and this is so despite the affidavit filed herein.
The Court, therefore, concludes that the attorney does not, under these circumstances, have the right to invoke the privilege against self-incrimination in behalf of his client, and that the work papers are the property of the accountant and must be produced in accordance with the summons.
Counsel will prepare an appropriate order fixing the time and place, mutually agreeable to the Agent and Mr. Tomaselli, for said production. In the event agreement cannot be reached, application may be made to the Court.