Attorney-at-Law

45 AND THE FIFTH AMENDMENT

In Uncategorized on 08/16/2022 at 17:04

This is still a nonpolitical blog, so I won’t comment on the recent appearance of a Former Person before a NY investigative body, where the Fifth Amendment was the plat du jour. Today the appraisers who invoked the sacred privilege against self-incrimination when IRS grilled them in Oconee Landing Property, LLC, Oconee Landing Investors, LLC, Tax Matters Partner, Docket No. 11814-19, filed 8/16/22, get to answer 45 (count ’em, 45) interrogatories, after having taken the Fifth whenever IRS breathed a word about  syndicated conservation easements.

Y’all will recall that IRS got Judge Albert G (“Scholar Al”) Lauber to get the appraisers into a deposition; see my blogpost “Why He Canceled Tuesday,” 10/12/21. But the appraisers took the Fifth thereat as aforesaid, and their crafty counsel also coined the “Section 6103  privilege.” But Judge Scholar Al says Section 6103 only criminalizes activities of IRS employees, which the appraisers certainly aren’t.

Immunologists. take note. “… respondent filed four Motions seeking to compel Messrs. W and V to answer the questions as to which these claims of privilege had been made. … the Court held an informal conference call with the parties and deponents’ counsel to discuss the Motions. We informed deponents’ counsel that we would have overruled all of his objections referring to section 6103 because that section imposes an obligation on IRS officers, not a privilege that appraisers may claim. Furthermore, we indicated that we would have overruled most (if not all) of his objections based on the Fifth Amendment because the questions asked were anodyne and appeared to create no ‘real danger’ of self-incrimination. Rogers v. United States, 340 U.S. 367, 374 (1951).

“In lieu of the Court’s ordering a second round of depositions, deponents’ counsel agreed that each deponent will respond to a maximum of 45 written questions posed by respondent. These questions should relate to matters as to which privilege was claimed during the depositions, including reasonable follow-up questions. All questions shall be answered under penalties of perjury, as was the case during the depositions. Deponents’ counsel was reminded that any objection to a written question premised on a supposed ‘section 6103 privilege’ will likely be overruled. If the Fifth Amendment privilege is claimed as to any question, deponents’ counsel shall supply a detailed explanation concerning the basis for that claim, cognizant that the Fifth Amendment protects against real dangers, not against remote and speculative possibilities. Zicarelli v. N.J. State Comm’n, 406 U.S. 472, 478 (1972).” Order, at pp. 1-2. (Names omitted).

Preparers and your coadjutors, beware! Are attorneys next? Watch this space.

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