Question

Couch’s financial records were kept with an accountant who prepared her tax returns. Pursuant to an IRS investigation, a summons was issued to the accountant demanding access to the records, which had been delivered to Couch’s attorney by the accountant. Does the Fifth Amendment privilege against compulsory selfincrimination prevent the production of these business and tax records? Why or why not?

Answer 1

No, the Fifth Amendment privilege against compulsory self-incrimination will not prevent the production of these business and tax records.

In this case Couch had effectively surrendered possession of the records to the accountant. As such there was no personal compulsion against Couch to produce the records. The Fifth Amendment will constitute no bar to the production of business and tax records by the accountant. This is despite the fact that tax investigation by IRS may entail possible criminal as well as civil consequences.

Here the fact that possession is with the accountant will be the main force. As per the provisions of law it is the basic rule that possession, and not ownership, will be determinative of the privilege provided by the Fifth Amendment. This is because the necessary element of compulsion is on the possessor which in this case is the accountant and not Couch.