The Response sets forth the reasons why Raniere seeks to have the IRS Summons quashed. Paragraph 3 of the Response alleges the IRS Summons is "unduly burdensome, oppressive, vague and overly broad rendering it unenforceable ...." Response at 2. The Response also contends that the IRS Summons (a) lacks specificity with respect to exactly which corporate entity's records are sought, (b) "presumably calls for all documents pertaining to the operation of some corporation without any limitations or parameters[,]" (c) lacks any specificity with respect to the time period from which documents are sought, (d) calls for documents already in the Government's possession, and (e) was not served on "a custodian of records or any other authorized employee or agent in accordance with established IRS administrative practice." Response at 2-3. Additionally, the Response contends Raniere should be entitled to assert his Fifth Amendment privilege against self-incrimination with respect to any testimony required by the IRS Summons. Id.
A. The Government's Prima Facie Case
United States v. Powell, 379 U.S. 48, 13 L. Ed. 2d 112, 85 S. Ct. 248 (1964), sets forth the requirements for a prima facie case for enforcement of the IRS Summons. The Government "must show that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within the [Government's] possession, and that the administrative steps required by the [Internal Revenue] Code have been followed ...." Id. at 57-58.
The Powell requirements have been met in this case. The Bassinder Declaration recites that the purpose of the IRS investigation is to investigate the tax liability of Raniere, who is the president and sole owner of Romeo, Inc. The IRS Investigation is designed to determine whether Raniere has violated any tax law with respect to the tax years 1991 through 1993. The IRS Investigation has thus far revealed that Raniere may have unreported income, as a result of his activities with Romeo Inc. Bassinder Declaration at 2. It appears the IRS Investigation is legitimate.
With regard to the second prong of the prima facie showing required by Powell, the information sought appears to be relevant to the legitimate purpose of the IRS investigation. "The Government is entitled even to information that has only 'potential relevance' to the investigation, ..., and the applicable standard is whether the information sought '"might throw light upon the correctness of the [tax] return."'" United States v. Rockwell Intern., 897 F.2d 1255, 1263 (3d Cir. 1990) (emphasis in original) (citations omitted). The requested corporate documents from Romeo, Inc. are an appropriate source to determine whether Raniere, its president and sole shareholder, received income from it which he did not report for the tax years in question.
The third prong of the Powell requirement is that the documents sought are not already in the possession of the Government. This requirement is satisfied by the Bassinder Declaration, which lists the documents already in the possession of the Government, and states that those documents do not satisfy the scope of the IRS Summons. Bassinder Declaration, P 9.
Finally, Powell requires the Government to comply with all administrative requirements. In order to ascertain the correctness of any tax return, the Government is authorized to "examine any books, papers, records or other data which may be relevant to such inquiry[.]" 26 C.F.R. § 301.7602-1. Bassinder was authorized to issue the IRS Summons. The administrative requirements imposed by the relevant IRS regulations have been met. The Government has made a prima facie case for the enforcement of the IRS Summons. Therefore, the burden of demonstrating that the IRS Summons should not be enforced is on Raniere. Powell, 379 U.S. at 58; United States v. Wheaton, 791 F. Supp. 103, 105 (D.N.J. 1992).
B. The Allegations in Raniere's Response
1. Allegations of Technical Flaws
The Government has responded adequately to each of the technical challenges to the IRS Summons raised by Raniere in the Response. The allegation that the IRS Summons lacks specificity because it is not clear as to which entity's documents are sought is without merit. The IRS Summons is addressed to Raniere, as president of Romeo Inc. d/b/a Raniere Associates and is clear with regard to which entity's records are sought. At the top of Attachment A to the IRS Summons, which details the documents sought, the word "Corporate" is prominently stated. There can be no question that the documents sought are the corporate records of Romeo Inc.
Raniere's challenge to the IRS Summons on the basis that records are sought without any limitations or parameters is likewise misplaced. The IRS Summons identifies twenty-nine specific categories of documents or records sought from Romeo Inc. It is confined to a specific period of time -- 1 January 1991 through 31 December 1993. Any challenge to the specificity of the IRS Summons is without merit. For the same reasons, Raniere's contention that the IRS Summons is unenforceable because no time period under investigation is identified is also without merit.
Raniere contends the IRS Summons was not served on a custodian of records or "authorized employee or agent in accordance with established IRS administrative practice." Response at 3. The Response, however, does not cite an IRS administrative practice that service of the IRS Summons on Raniere is alleged to have violated. Raniere, as president of Romeo Inc., is either an authorized employee or custodian of records; service of the IRS Summons on him was appropriate. See Braswell v. United States, 487 U.S. 99, 101 L. Ed. 2d 98, 108 S. Ct. 2284 (1988); United States v. Lawn Builders of New England, Inc., 856 F.2d 388, 394 (1st. Cir. 1988).
2. The Fifth Amendment Claim
In the Response, Raniere also claims he should be able to "assert his privilege against self-incrimination with" respect to an IRS summons." Response at 3.
Generally, a blanket or general assertion of a Fifth Amendment privilege to resist enforcement of an IRS summons is insufficient as a matter of law. United States v. Allshouse, 622 F.2d 53, 56 (3d Cir. 1980); see also ICC v. Gould, 629 F.2d 847, 861 (3d Cir. 1980), cert. denied 449 U.S. 1077, 66 L. Ed. 2d 800, 101 S. Ct. 856 (1981). Rather, a taxpayer must specifically assert the Fifth Amendment privilege with respect to individual requests. This requirement serves a dual purpose: "First, it helps the court in making an assessment of whether the privilege is justified with respect to the particular question being asked. Additionally, it prevents the taxpayer from using a blanket claim of privilege as a shield for unprivileged evidence of wrongdoing." Allshouse, 622 F.2d at 56.
In Allshouse, the IRS issued a summons seeking partnership documents and testimony. Id. at 55. The Circuit affirmed the district court's enforcement of the summons, but reversed the district court's order prohibiting the Government from asking any questions. Id. at 57. "Mere general assertions" of Fifth Amendment privilege are insufficient. Id. As discussed, "specific invocations" of the privilege must be asserted with respect to particular questions. Id.
A "taxpayer seeking the protection of [the Fifth Amendment] to avoid compliance with an IRS summons 'must provide more than mere speculative, generalized allegations of possible tax-related prosecution.... The taxpayer must be faced with substantial and real hazards of self-incrimination.'" United States v. Argomaniz, 925 F.2d 1349, 1353 (11th Cir. 1991) (citation omitted).
The jurisprudence of the Third Circuit, prior to Braswell, is succinctly stated in In Re Grand Jury Matter, 768 F.2d 525 (3d Cir. 1985), which framed the self-incrimination issue as follows:
We must decide whether a person, simply by virtue of his status as a custodian of a corporation's records, can be compelled to make self-incriminating disclosures that are testimonial, i.e. communicative or assertive in nature. ... Thus, what is in issue is solely the question whether [the custodian] may be compelled by subpoena to give testimony ..., verbally or by a non-verbal communicative act, authenticating those records.
Id. at 526.
The Government in In Re Grand Jury Matter argued that such testimony could be compelled, whether verbal or otherwise, and that it could subsequently be used against the custodian. Id. The Circuit held the custodian could "not be held in contempt for refusing to authenticate records absent either a finding that there is no likelihood of self-incrimination or a grant of use immunity ...." Id. at 528.
The Circuit further court noted that its holding "casts no doubt on the continued vitality of the rule ... that neither corporations nor other collective entities may assert a privilege against self-incrimination." Id. "Where a witness is required to authenticate records, most business entities will have agents who can provide the testimony without self-incrimination." Id. at 529.
Because the Government in In Re Grand Jury Matter "never explored alternate means of production or authentication of the documents," id., the Circuit held that the district court, before allowing the custodian to invoke the Fifth Amendment privilege, must first determine whether the testimony sought would tend to incriminate him. Id. at 529.
In re Grand Jury (31 October 1985), Misc. No. 85-343, slip op. (D.N.J. 11 March 1987), rev'd on other grounds, sub nom., Matter of Special Federal Grand Jury, 819 F.2d 56 (3d Cir. 1987), dealt with a motion to quash an IRS subpoena that was similar to the one in the instant matter. The subpoena in 31 October Grand Jury was addressed to an officer of a closely-held corporation and sought corporate documents. Slip op. at 3. The corporate officer appeared to be the target of a grand jury investigation. Id.
Unlike the instant matter, or the matter before the Circuit in In Re Grand Jury Matter, the Government in 31 October Grand Jury sought only documents -- not authentication testimony. Id. The assistant United States Attorney expressly stated, on the record, that the Government was "not looking for testimony." Id at 4. Nevertheless, the corporate officer argued that the subpoena should have been quashed because the act of production would constitute compelled incriminating testimonial communications, in violation of the Fifth Amendment.
The In Re Grand Jury Matter decision was distinguished at the trial level because the subpoena did not seek oral testimony. Significance was given to fact that the Government sought only document production. "It [did] not seek to authenticate the documents through the testimony or conduct of [the corporate officer]." Id. at 10.
On appeal, the Circuit remanded the matter for a finding as to whether the corporate custodian's act of production would incriminate him.
Matter of Special Federal Grand Jury, 819 F.2d at 59. "It cannot be said that a corporate representative's act of production, as a matter of fact, can never be personally incriminating." Id.
Because the record in the case was not "sufficiently developed," id., the Circuit remanded the matter to permit the corporate custodian to attempt to persuade the court that he "had a 'reasonable cause to apprehend danger' of self-incrimination from the act of production." Id. (citing Hoffman v. United States, 341 U.S. 479, 486, 95 L. Ed. 1118, 71 S. Ct. 814 (1951); Donovan v. Spadea, 757 F.2d 74, 78 (3d Cir. 1985)).
If such a showing was made, the Circuit directed that "the subpoena should be quashed unless the Government secures use immunity for [the corporate custodian] pursuant to 18 U.S.C. §§ 6002 and 6003." Matter of Special Federal Grand Jury, 819 F.2d at 59.
Subsequent to the Circuit's decision in Matter of Special Federal Grand Jury, the Supreme Court addressed this issue in Braswell. The Braswell Court dealt with a subpoena similar to both the IRS Summons in the instant matter and the subpoena in 31 October Grand Jury. The subpoena in Braswell was addressed to "Randy Braswell, President Worldwide Machinery Sales, Inc. [and] Worldwide Purchasing, Inc." 487 U.S. at 101.
Noting a conflict among the courts of appeals
, the Court restated the long-standing "collective entity" doctrine:
Without regard to whether the subpoena is addressed to the corporation, or ... to the individual in his capacity as custodian, ... a corporate custodian such as petitioner may not resist a subpoena for corporate records on Fifth Amendment grounds.
Id. at 108-09. The Court rejected petitioner's argument that the collective entity doctrine had been diminished by the Court's rulings in cases such as Fisher v. United States, 425 U.S. 391, 48 L. Ed. 2d 39, 96 S. Ct. 1569 (1976) and United States v. Doe, 465 U.S. 605, 79 L. Ed. 2d 552, 104 S. Ct. 1237 (1984). Braswell, 487 U.S. at 109.
The rationale for the decision in Braswell was that "artificial entities such as corporations may act only through their agents, ... and a custodian's assumption of his representative capacity leads to certain obligations, including the duty to produce corporate records on proper demand by the Government." Id. at 110. The Court concluded by holding that the Fifth Amendment privilege against self-incrimination does not apply where an individual attempts to resist a subpoena for corporate documents on the ground that producing them could incriminate him individually. Id. at 119.
Following Braswell, the Third Circuit stated: "[A corporation] has no Fifth Amendment privilege and may not refuse to produce corporate documents based upon the privilege of a corporate custodian." U.S. v. $ 1,322,242.58, 938 F.2d 433, 439 n.5 (3d Cir. 1991). Other courts have similarly applied this ruling.
Where the custodian of corporate documents is a sole shareholder, employee and officer of a corporation, as Raniere appears to be, the Fifth Amendment will not operate to protect him or her from producing corporate records. U.S. v. Stone, 976 F.2d 909, 912 (4th Cir. 1992), cert. denied, U.S. , 113 S. Ct. 1843 (1993); Matter of Grand Jury Subpoenas, 959 F.2d 1158, 1163 (2d Cir. 1992); Lawn Builders of New England, 856 F.2d at 393-94; In re Grand Jury Proceedings (John Doe Co., Inc.), 838 F.2d 624, 627 (1st Cir. 1988).
The Fifth Amendment privilege against self-incrimination is personal; it extends protection only to the private papers and effects of the person asserting the privilege. United States v. White, 322 U.S. 694, 699, 88 L. Ed. 1542, 64 S. Ct. 1248 (1944). "An individual cannot rely upon the privilege to avoid producing the records of a collective entity which are in his [or her] possession in a representative capacity, even if those records might incriminate him [or her] personally." Bellis v. United States, 417 U.S. 85, 88, 40 L. Ed. 2d 678, 94 S. Ct. 2179 (1974).
As the First Circuit observed:
"It is well settled that no privilege can be claimed by the custodian of corporate records, regardless of how small the corporation may be." ... It was [Respondent's] choice to incorporate. With that choice came all the attendant benefits and responsibilities of being a corporation. One of those responsibilities is to produce and authenticate records of the corporation when they are subpoenaed by the grand jury.