Lawyer Must Produce Client’s Tax Returns.

Discovery of Tax Returns

Tax returns prepared by an accountant were turned over to the civil tax lawyer for the person being investigated by the IRS. The civil lawyer turned them over to a lawyer for the firm providing representation for the criminal tax investigation. That lawyer turned them over to the partner in charge of the criminal defense. The IRS issued a summons to that partner for him to produce the client’s tax records. The partner refused to produce them, claiming production would violate the client’s rights under the Fifth Amendment, and the IRS sought enforcement through the court. The district court, finding the documents fell within the “foregone conclusion” exception to the Fifth Amendment, ordered production. The Ninth Circuit affirmed, stating:  “For the ‘foregone conclusion exception to apply, the government must establish its independent knowledge of three elements: the documents’ existence, the documents’ authenticity and respondent’s possession or control of the documents.’”  United States of America v. Sideman & Bancroft, LLP (Ninth Cir.; January 8, 2013).