United States v. Bouschor, 5-61-50 Civ.
| Decision Date | 08 December 1961 |
| Docket Number | No. 5-61-50 Civ.,5-61-50 Civ. |
| Citation | 200 F. Supp. 541 |
| Parties | UNITED STATES of America, Plaintiff, v. Royal G. BOUSCHOR, Defendant. |
| Court | U.S. District Court — District of Minnesota |
Miles W. Lord, U.S. Atty., Patrick J. Foley, Asst. U.S. Atty., Minneapolis, Minn., for plaintiff.
Joseph B. Johnson, Duluth, Minn., for defendant.
This is a proceeding under Sections 7602, 7603, and 7604 of the Internal Revenue Code, Title 26 U.S.C., to enforce a subpoena requiring the production of certain documents for examination by the Bureau of Internal Revenue. An ex parte order was issued by this Court to enforce the subpoena and defendant filed a petition requesting an order discharging the ex parte order and quashing the subpoena.
Adam G. O'Brien, the taxpayer in question, was audited prior to the present action by agents of the Bureau of Internal Revenue relative to his federal income tax returns for the years 1953 through 1959. In the fall of 1960 the taxpayer became aware that the Bureau of Internal Revenue was making further investigation of his income taxes for these years whereupon he consulted Royal G. Bouschor, an attorney, who is the defendant in this action. As a result of this conference, the taxpayer directed his accountants, the firm of Stillman and Oase, to turn over to defendant all documents relating to his federal income taxes for the years 1953 through 1959. On December 5, 1960, the accountants, who were in possession of the taxpayer's records for these years, delivered them to the defendant.
On June 9, 1961, defendant was served with a subpoena directing him to produce the documents, as follows:
"All workpapers, reconcilements, summaries, schedules, analyses, adjusting entries, notes, memoranda, correspondence and copies of correspondence and all other papers and documents relating to the federal income tax liability of Adam G. O'Brien, Sr., also known as A. G. O'Brien, doing business as A. G. O'Brien Plumbing and Heating Co., for the years 1954 through 1959, which you received from Mr. Oscar W. Oase and/or from Mr. N. A. Stillman, Certified Public Accountants, Duluth, Minnesota."
Upon defendant's refusal to comply with the subpoena, an ex parte order of this Court was issued on July 21, 1961, directing defendant to produce these documents. Defendant thereupon filed the petition now before the Court requesting an order discharging the ex parte order and quashing the subpoena.
This proceeding involves the question of enforcement by this Court of 26 U. S.C. § 7602.1 It must be decided whether the enforcement of this Section violates the taxpayer's constitutional rights against unreasonable searches and seizures under the Fourth Amendment or against self-incrimination under the Fifth Amendment. Also to be determined is whether the enforcement of this Section violates any privileges the taxpayer may have with respect to confidential communications arising from the attorney-client relationship.
The documents which the Government seeks to examine in the present proceeding are the taxpayer's records relating to his income tax liability for the years in question. Records of this nature are required to be kept pursuant to 26 U.S.C. § 6001.2 The requirements of this Section, together with the authorization given the Commissioner to examine such records under Section 7602, do not violate the taxpayer's rights under either the Fourth or the Fifth Amendments.3 In accord with well-settled principles the legislative power to levy taxes and prescribe regulations for assessment and valuation of property for tax purposes includes the power to adopt reasonable regulations designed to make all assessable property bear its proportion of the tax burden; and to that end private rights and personal interests must make reasonable concessions to public necessities.
The final question to be determined is whether the attorney-client privilege applies to the taxpayer's records which are in the possession of the defendant. It has been established, from the principles already discussed, that the taxpayer in the present case may be lawfully compelled to surrender these records for examination by the proper authorities. In the case of a taxpayer who may be lawfully compelled to surrender records for examination, the transfer of these records by the taxpayer to his attorney does not give rise to the attorney-client privilege with respect to such records.4 This is the situation which exists in the present case and therefore the defendant, as attorney for the taxpayer, may not refuse to surrender the...
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Bouschor v. United States
...government's application for the enforcement of an Internal Revenue Service summons served upon Bouschor and (b) quashing that summons. 200 F.Supp. 541. Bouschor has The appellant is a Duluth lawyer. For over twenty years he has represented the taxpayer A. G. O'Brien, proprietor of a plumbi......
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United States v. Judson, 18010.
... ... Boccuto, 175 F.Supp. 886 (D. N.J.1959), and Bouschor v. United States, 316 F.2d 451 (8th Cir., 1963) ... In Boccuto the court had ... ...
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Stern v. Robinson
...courts holding specifically that income tax records required to be kept do not have Fifth Amendment protection: United States v. Bouschor, 200 F. Supp. 541 (D.C.Minn.1961) and Falsone v. United States, 205 F.2d 734 (5th Cir. 1953). We therefore conclude, as stated, that these records of tax......