15 Sep 23

How to Assert Your Constitutional Rights During an IRS Interview

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Last Updated on: 16th September 2023, 06:19 pm

How to Assert Your Constitutional Rights During an IRS Interview

Being audited by the IRS can be an intimidating and stressful experience. However, it’s important to remember that you have constitutional rights that protect you during the audit process. Asserting these rights properly can help ensure a fair and just audit.

The Audit Process

There are a few key things to understand about IRS audits:

  • Audits are meant to verify information on your tax return and can cover income, deductions, credits, etc. The IRS selects returns to audit based on things like income discrepancies, high deductions, random sampling, referrals, etc. [1]
  • Most audits are done by mail. However, some require an in-person or virtual interview with an IRS agent. These interviews allow them to ask you questions and get clarification. [2]
  • The interview process is not an adversarial one. The agent is simply trying to understand your financial situation, verify your return, and determine the correct tax liability. They are not out to get you.
  • That said, the agent is representing the IRS and you need to protect your rights. Asserting them properly can prevent misunderstandings and issues.

Your Key Rights and How to Assert Them

During an IRS interview, you have important constitutional rights that you should assert to protect yourself. Here are some key ones:

Right to Remain Silent

You have the right under the 5th Amendment to remain silent in order to avoid self-incrimination. This means you don’t have to answer questions that could implicate you in any type of tax fraud or evasion. To assert this right:

  • Politely state that you are asserting your 5th Amendment right and will not be answering certain questions.
  • Be selective and only refuse to answer potentially incriminating questions.
  • Don’t answer any follow-up questions related to the issues you avoided.

Right to Record the Interview

You can record (audio/visual) the interview yourself to have an accurate record of what was discussed. To assert this right:

  • Notify the IRS agent that you will be recording the interview.
  • Make sure your recording device is set up and working before the interview starts.
  • State for the record that you are recording the interview.

Right to Consult Counsel

You have the right to consult with legal counsel, like a tax attorney or CPA, before answering questions. To assert this right:

  • State that you need to consult with your attorney/CPA before responding.
  • Pause the interview and step out to contact your advisor.
  • Follow their recommendations on how to proceed.

Right to End the Interview

If at any point you need to stop the interview, you have the right to end it. To assert this right:

  • Tell the IRS agent you are ending the interview for the day.
  • Politely yet firmly state you will not be answering any further questions.
  • Leave the interview location.

Other Helpful Tips

Here are some other tips for asserting your rights properly during an IRS interview:

  • Bring any documents, records, notes, etc, to support your case.
  • Take detailed notes during the interview.
  • Get the agent’s name and contact information.
  • Ask for an explanation if you don’t understand a question.
  • If you accidentally misspeak, correct yourself immediately.
  • Remain calm, professional, and firm when asserting your rights.

Avoiding Future Issues

To reduce the chances of being audited in the future:

  • Keep immaculate records and documentation.
  • Report all income accurately and claim legitimate deductions only.
  • Consult a tax professional if you have questions when filing.

Standing up for your rights during an IRS audit can seem intimidating. However, knowing your protections under the law and asserting them properly can help ensure the fairest outcome. Politely exercising your constitutional rights shows the IRS you know your rights while still respecting the process.