Ueckert v. C.I.R., 83-1782

• Decision Date: 17 November 1983
• Docket Number: No. 83-1782,83-1782
• Citation: 721 F.2d 248
• Parties: 83-2 USTC P 9696 Martin J. UECKERT, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 248

721 F.2d 248

83-2 USTC P 9696

Martin J. UECKERT, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.

No. 83-1782.

United States Court of Appeals,

Eighth Circuit.

Nov. 17, 1983.

Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Carleton D. Powell, Thomas A. Gick, Tax Div., Dept. of Justice, Washington, D.C., for appellee.

Martin J. Ueckert, appellant pro se.

Before HEANEY, BRIGHT and McMILLIAN, Circuit Judges.

PER CURIAM.

Martin J. Ueckert appeals pro se from a decision of the tax court upholding a determination by the Commissioner of deficiencies and additions to income tax for the years 1976 and 1977. We affirm.

For each of the years in question, Ueckert submitted to the Internal Revenue Service (IRS) signed Forms 1040 containing only his name and address. Ueckert reported no income, credits, deductions, or tax liability. Instead, on each pertinent line of the forms he inserted the word "object." On the back of the 1977 form, Ueckert wrote, "[t]he entry (object) indicates that I assert my privilege to the fifth amendment." The two forms were not accepted by the IRS as valid income tax returns.

Because Ueckert either failed to keep adequate financial records or refused to make them available, the IRS determined the amount of his taxable income by the bank deposit method. ¹ The IRS concluded that Ueckert owed a total of $11,082.09 in deficiencies and additions to tax, and sent him a Notice of Deficiency in August 1980. Ueckert responded by filing a petition with the tax court raising a general fifth amendment claim of privilege against self-incrimination, and seeking redetermination of the deficiency. The tax court rejected Ueckert's fifth amendment argument as frivolous in the absence of any pending or threatened prosecution. The tax court also concluded that Ueckert had failed to carry the burden of showing that the deficiencies and additions to tax asserted against him were erroneous. This appeal followed.

The principal issue raised by Ueckert on appeal is whether the tax court erred in rejecting his constitutional objections to completing his tax returns. Ueckert argues that providing income data on his tax forms would subject him to possible prosecution for an unnamed crime in violation of his fifth amendment privilege against self-incrimination. He contends, therefore, that he does not have to provide any financial information until he is granted immunity from all state and federal prosecution.

The tax forms filed by Ueckert for 1976 and 1977 contained no income information from which tax liability could be calculated. They were thus inadequate to satisfy filing requirements and constituted failure to file valid returns. See, e.g., United States v. Pryor, 574 F.2d 440, 442 (8th Cir.1978); United States v. Silkman, 543 F.2d 1218, 1219 (8th Cir.1976), cert. denied, 431 U.S. 919, 97 S.Ct. 2185, 53 L.Ed.2d 230 (1977); United States v. Daly, 481 F.2d 28, 29 (8th Cir.), cert. denied, 414 F.2d 1064, 94 S.Ct. 571, 38 L.Ed.2d 469 (1973). A taxpayer cannot rely on the privilege against self-incrimination to refuse to disclose any information or to fail to file a tax return. See United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927). ² It is well established, moreover, that the fifth amendment privilege applies only where the danger of self-incrimination is real and appreciable, not remote and speculative. See e.g., Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 478, 92 S.Ct. 1670, 1675, 32 L.Ed.2d 234 (1972); Lukovsky v. Commissioner, 692 F.2d 527 (8th Cir.1982), cert. denied, --- U.S. ----, 103 S.Ct. 1776, 76 L.Ed.2d 347 (1983); Edwards v. Commissioner, 680 F.2d 1268, 1270 (9th Cir.1982). Unless the danger of self-incrimination is readily apparent, the burden of showing such danger exists rests with the claimant of the privilege. Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951); Rechtzigel v. Commissioner, 703 F.2d 1063 (8th Cir.1983). Furthermore, the claimant cannot be the sole arbiter of whether the information sought would tend to incriminate. The court must decide whether his silence is justified. Hoffman v. United States, supra, 341 U.S. at 486, 71 S.Ct. at 818; Rechtzigel v. Commissioner, supra, 703 F.2d at 1064; United States v. Johnson, 577 F.2d 1304, 1311 (5th Cir.1978). The claimant need not incriminate himself in order to invoke the privilege, but if the circumstances appear to be innocuous, he must make some positive disclosure indicating where the danger lies. McCoy v. Commissioner, 696 F.2d 1234, 1236 (8th Cir.1983).

In the present case, Ueckert has not met his burden of showing that a real and substantial danger of incrimination exists. Appellant acknowledges that the Commissioner informed him the IRS was neither conducting nor contemplating a criminal investigation of Ueckert with respect to the years in question. He contends, however, that his fear of prosecution is not so much from the IRS as from other governmental agencies with access to information in IRS files. Essentially, Ueckert's position is that some governmental entity might, at some future time, use the information on his tax forms to detect an offense and build a case against him. Ueckert has declined to produce any information from which the court might determine the merits of his self-incrimination claim or which would indicate that a grant of immunity was appropriate. Therefore, the tax court properly concluded that any possible danger of self-incrimination for a tax or nontax crime is too remote and speculative to support a fifth...