How to Assert Your Fifth Amendment Rights in an IRS Interview

How to Assert Your Fifth Amendment Rights in an IRS Interview

Dealing with the IRS can be an intimidating and stressful experience. Many taxpayers worry that anything they say may potentially incriminate them or lead to further scrutiny from the IRS. Thankfully, the Fifth Amendment to the Constitution provides important protections for taxpayers who are under IRS investigation. The Fifth Amendment states that no person “shall be compelled in any criminal case to be a witness against himself.” This means that you have the right to refuse to answer questions during an IRS interview if you believe your answers could potentially incriminate you.

Asserting your Fifth Amendment rights during an IRS interview requires some careful consideration. Here are some tips on how to properly invoke your Fifth Amendment privilege:

You Can Selectively Assert The Fifth

When asserting your Fifth Amendment rights in an IRS interview, you do not have to refuse to answer every single question. The key is being selective about which questions you decline to answer. Refusing to answer just a few specific questions that may be incriminating is perfectly acceptable. There is no need to make a blanket assertion of the Fifth to every question asked. Carefully consider each question asked, and politely decline to provide answers that could potentially get you into legal trouble [1].

Clearly State You Are Asserting The Fifth

When you have identified a question that you do not wish to answer, you need to clearly invoke your Fifth Amendment right. Simply say: “I respectfully decline to answer that question based on my Fifth Amendment constitutional right.” The interviewing agent will recognize your valid assertion of this right. There is no need to provide further explanation, simply politely decline to provide an answer to the specific question [2].

Put It In Writing

In addition to verbally asserting your Fifth Amendment rights during the interview, it is also a good idea to put it in writing. After the interview, follow up with a written letter to the IRS agent confirming which specific questions you declined to answer based on the Fifth Amendment. Your written record will document your valid assertion of this important constitutional right.

Don’t Answer Follow-Up Questions

Oftentimes, the IRS agent may ask follow-up questions about why you are asserting your Fifth Amendment rights. However, you are under no obligation to explain further or answer these questions about your assertion of the Fifth. Politely decline to provide any additional information about your reasons for asserting the Fifth Amendment.

You Can Revoke Assertion Of Fifth Amendment

If you initially assert your Fifth Amendment rights regarding a question, but later change your mind and decide you are willing to provide an answer, you can revoke your prior Fifth Amendment assertion. Just inform the IRS agent that you are now willing to provide an answer to the previously-declined question. However, be very careful about revoking, as anything you say can potentially be used against you.

Assert Fifth Amendment in Writing Too

Your Fifth Amendment rights apply not just to verbal interviews, but also written communications with the IRS. If the IRS sends you a request for information or written questions, you can assert your Fifth Amendment privilege in your written response. Carefully review each question, and politely decline to provide answers to any specific questions that may incriminate you.

IRS Summons Requires Appearance

If you receive an IRS summons to appear for testimony, you are legally required to show up at the designated time and place. However, you retain your Fifth Amendment rights during your summoned appearance, and can selectively decline to answer potentially incriminating questions [3].

Talk To A Lawyer First

Before sitting down for an IRS interview or providing written responses, it is wise to consult with a lawyer experienced in Fifth Amendment assertions. An attorney can help you understand when to assert the Fifth Amendment, and how to properly invoke this constitutional protection. Relying on proper legal advice helps ensure you avoid accidentally waiving your rights.

Penalties For Improper Fifth Amendment Assertion

If you improperly assert your Fifth Amendment rights, or refuse to answer questions that do not incriminate you, the IRS can seek court approval to compel a response. If a court orders you to provide answers, continued refusal could potentially subject you to penalties for contempt of court. Consulting a lawyer minimizes the chances of improperly invoking the Fifth Amendment.

No Blanket Fifth Amendment Right

While the Fifth Amendment provides strong protections, courts have held that you cannot make a blanket assertion of the Fifth Amendment to refuse to answer all questions in an IRS matter. You must selectively identify specific questions that raise real incrimination risks, while still providing other non-incriminating information requested.

Fifth Amendment Impact on Civil Tax Assessment

In a civil IRS audit or tax dispute, improperly asserting the Fifth Amendment or refusing to provide requested financial information can lead to the IRS assessing taxes against you based on estimates. This may result in an inflated tax bill. Carefully declining to answer only specific incriminating questions reduces this risk.

Can’t Rely on Fifth Amendment to Avoid Paying Taxes

You cannot rely on asserting your Fifth Amendment rights as a way to avoid paying taxes properly owed under the law. The Fifth Amendment only allows you to decline to provide potentially incriminating evidence. It does not allow you to unlawfully avoid paying your taxes.

No Negative Inferences from Proper Fifth Amendment Assertion

If you properly assert your Fifth Amendment rights during an IRS interview, the IRS is not legally allowed to draw any negative inferences against you based on your refusal to answer specific questions. Your valid assertion of this constitutional right may not be used against you.

Fifth Amendment Can Be Asserted by Taxpayers and Third Parties

The important Fifth Amendment protections apply both to taxpayers under IRS investigation, as well as third-parties who may be witnesses or have information relevant to an IRS matter. Any person has the right to selectively assert the Fifth Amendment to avoid providing potentially incriminating information.

No Fifth Amendment Right for Business Records

While individuals have Fifth Amendment protections, businesses organized as corporations, partnerships, etc. do not have a Fifth Amendment right against self-incrimination. Business entities must comply with IRS requests for records and information, even if incriminating.

Asserting Fifth Amendment Has No Bearing on Burden of Proof

In a civil IRS audit or tax dispute, the ultimate burden of proof remains on the IRS to support its position and show that a tax deficiency is warranted. Your valid assertion of Fifth Amendment rights does not shift the burden of proof to you at any time.

Fifth Amendment Availability Can Depend on Type of IRS Investigation

Whether you can assert your Fifth Amendment rights depends in part on what type of IRS matter you are involved in – audit, appeal, collection case, etc. In some civil contexts like collections, the Fifth Amendment may have limited applicability. Consult a lawyer on how the Fifth Amendment applies to your specific IRS situation.

No Fifth Amendment Right Once Immunity Granted

If the IRS grants you “immunity” from criminal prosecution regarding your testimony, you can no longer assert your Fifth Amendment rights and refuse to answer questions. Immunity prevents your answers from being used against you criminally.

Assertion of Fifth Amendment Should Be Last Resort

Before rushing to assert your Fifth Amendment rights, consider whether simply explaining your tax position to the IRS may be more beneficial. Hiding behind the Fifth Amendment can raise red flags, while calmly providing explanations can facilitate resolution. Only assert the Fifth when truly necessary.

IRS Agent Cannot Draw Negative Inference from Fifth Amendment Assertion

IRS agents are prohibited from drawing any negative inferences against you based on your valid assertion of Fifth Amendment rights. However, the IRS can use independent evidence against you. So other incriminating evidence may still impact the civil case.

Maintain Polite and Professional Tone

Even if asserting your Fifth Amendment rights, remain calm and polite in your interactions with IRS personnel. Do not become hostile or aggressive. Maintain a professional dialogue and tone when declining to answer specific questions.

Properly asserting your Fifth Amendment rights during an IRS interview can be complex. Hopefully this overview provides some guidance on this critical constitutional protection. However, every taxpayer’s situation is unique. Consult with a knowledgeable tax attorney to understand how best to assert your Fifth Amendment privilege in your particular IRS matter.

References

[1] https://www.federallawyers.com/criminal-defense/how-to-assert-your-constitutional-rights-during-an-irs-interview/

[2] https://www.irs.gov/irm/part9/irm_09-004-005

[3] https://www.irs.gov/irm/part25/irm_25-005-005