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Author Topic:   Wise Words From a Hero----Dr Carson
Ami Anne
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posted November 22, 2013 07:18 PM     Click Here to See the Profile for Ami Anne     Edit/Delete Message   Reply w/Quote
Dr. Benjamin S. Carson
Good morning and enjoy your well deserved weekend.

It is so extremely unfortunate that many people including celebrities like Oprah Winfrey have decided to play the race card by indicating any of the people who oppose President Obama's agenda are simply doing so upon the premise of racism. This is an invalid criticism as many people simply oppose a large government seizing control over the liberties we have formally considered to be integral characteristics of our nation. It is time to grow up and stop describing the opposition of an individual's beliefs to be exercised as racist, this is so close-minded. Is it truly racist to oppose the forced implementation of a system of healthcare that places the government in charge of one's most prized possession, your health? Is it racist to oppose the highest corporate tax rates in the world which drives business out of our nation rather than into it? Is it racist to oppose wealth redistribution which stifles business development and American entrepreneurship? Is it racist to oppose the policies of the Environmental Protection Agency that don't promote energy independence? Is it racist to oppose having a weak or non existent foreign policy that places the entire world in danger? Is it racist to oppose presidential rhetoric that has produced an intolerably divisive atmosphere throughout the nation? Dr. Martin Luther King, Jr. had a dream of a day when we would collectively evaluate people on the basis of their character and not the color of their skin. By assuming that opposition to the president is racist we instantaneously find ourselves having abandoned Dr. King's dream.

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Ami Anne
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posted November 22, 2013 07:21 PM     Click Here to See the Profile for Ami Anne     Edit/Delete Message   Reply w/Quote
Barak Hussein NObama had this fine man, Dr Carson, audited for daring to stand up and tell the truth.

PS You can see Dr Carson's school records but Barak Hussein NoBama has his records hidden away like the place they buried Jimmy Hoffa

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Catalina
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posted November 22, 2013 10:45 PM     Click Here to See the Profile for Catalina     Edit/Delete Message   Reply w/Quote
I won't call him a racist but he is a hypocrite. He was all too happy to benefit from affirmative sction but now he says it "weakens" people. He is well aware how much the insurance industry has hurt medicine but rather than gove constructive suggestions how to make the ACA more effective in curbing the damage, he just blasts it.

And like many black men who have made it - with help - he is doing his best to deny that that help made a difference.

Racist, maybe not, but being black doesn't automatically rule that out, as the conservative media would like to pretend. Like a crab in a bucket he is happy to crawl over the back of someone who got there before him, and if that means pulling himhim down, that's all right.

As to Obama having him audited that is speculation and grandstanding. The IRS audits people all the time, like the 130 non-conservative entities who got no publicity when the 70tea partiers made a media splash out of their "victimization"

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Randall
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posted November 22, 2013 11:18 PM     Click Here to See the Profile for Randall     Edit/Delete Message   Reply w/Quote
Audits are voluntary. "An individual may refuse to exhibit his books and records for examination on the ground that compelling him to do so might violate his right against self-incrimination under the Fifth Amendment and constitute an illegal search and seizure under the Fourth Amendment." Section 342.12 of the IRS' Handbook For Special Agents

Section 342.15: "The privilege against self-incrimination must be specifically claimed or it will be considered to have been waived."

"Only the rare taxpayer would be likely to know that he could refuse to produce his records to IRS agents."

United States Court of Appeals
United States v. Dickerson

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Randall
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posted November 22, 2013 11:35 PM     Click Here to See the Profile for Randall     Edit/Delete Message   Reply w/Quote
How to beat an IRS audit in about 30 seconds:

"If I turn my books and records over to you, can the government use any of the information against me?"

The reply will be in the affirmative.

"Do I have a legal obligation to give you any information that can be used against me?"

You may not hear an actual no, but the auditor will leave. The audit is over.

If they want your records bad enough, they can issue a summons. But the IRS Handbook for Special Agents does not recommend doing so due to "the adverse effect on voluntary compliance by others if the enforcement efforts are not successful." That means that not even a summons can force you to submit to an audit. While you can break audit appointments at will with no legal repercussions, you must show up if summoned, or you could go to jail. So, you just have to show up and bring your books and records with you and then refuse to turn them over.

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Ami Anne
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posted November 23, 2013 07:53 AM     Click Here to See the Profile for Ami Anne     Edit/Delete Message   Reply w/Quote
You know a lot, Randall. I never heard most of the things you say! You are gonna be a great lawyer!

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Catalina
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posted November 23, 2013 12:20 PM     Click Here to See the Profile for Catalina     Edit/Delete Message   Reply w/Quote
Thanks for the info, Randall...do you thinkBen Carson knew this when he implied he was audited to shut him up?

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Randall
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posted November 23, 2013 02:35 PM     Click Here to See the Profile for Randall     Edit/Delete Message   Reply w/Quote
No, few people know it. The IRS works hard keeping people in the dark through fear and intimidation with press stories just like this one.

If the IRS really gets mad, they will try to disallow your deductions. All you have to do then is fill out an Affidavit. This changes the burden of proof from you to the IRS. It's like holding up a crucifix to a vampire. The IRS will put you in their stay away file. They will move on to easier prey.

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Ami Anne
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posted November 23, 2013 02:54 PM     Click Here to See the Profile for Ami Anne     Edit/Delete Message   Reply w/Quote
quote:
Originally posted by Randall:
No, few people know it. The IRS works hard keeping people in the dark through fear and intimidation with press stories just like this one.

If the IRS really gets mad, they will try to disallow your deductions. All you have to do then is fill out an Affidavit. This changes the burden of proof from you to the IRS. It's like holding up a crucifix to a vampire. The IRS will put you in their stay away file. They will move on to easier prey.


I never heard of it, so that would mean few people would know

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Catalina
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posted November 23, 2013 03:39 PM     Click Here to See the Profile for Catalina     Edit/Delete Message   Reply w/Quote
Lol the IRS doesn't have a temper, it's a group of largely disconnected people...

As I've said before, after an initial frustrating and kafkaesque phone call, I have found every single person I've dealt with there to be more than helpful and even kind.

Of course I am not a crook nor do I subscribe to negative propaganda..

I would be interested to see how many people have gotten away with the 5th amendment manoever tho. Is there any data available?

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Randall
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posted November 23, 2013 07:37 PM     Click Here to See the Profile for Randall     Edit/Delete Message   Reply w/Quote
If the agent gets mad is a more apt statement.

The IRS must follow their manual. No data is needed.

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AcousticGod
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posted November 23, 2013 07:50 PM     Click Here to See the Profile for AcousticGod     Edit/Delete Message   Reply w/Quote
What Randall has posted on taxes is materially wrong, however. We have been over the subject in the past. Everyone is free to check out the IRS's website to get educated on the matter, or just google, "IRS audit 5th Amendment". You'll drown yourself in legal fees attempting to take that route, and the court will not find in your favor.

There is no current IRS Handbook for Special Agents. Google it. Go to the IRS website, and try to track it down. Copy what Randall posted, and try searching for it.

Here's the IRS's word on audits: http://www.irs.gov/publications/p556/ar02.html#en_US_201312_publink1000176949

    Burden of proof. For court proceedings resulting from examinations started after July 22, 1998, the IRS generally has the burden of proof for any factual issue if you have met the following requirements:

  • You introduced credible evidence relating to the issue.

  • You complied with all substantiation requirements of the Internal Revenue Code.

  • You maintained all records required by the Internal Revenue Code.

  • You cooperated with all reasonable requests by the IRS for information regarding the preparation and related tax treatment of any item reported on your tax return.

  • You had a net worth of $7 million or less and not more than 500 employees at the time your tax liability is contested in any court proceeding if your tax return is for a corporation, partnership, or trust.

quote:
I would be interested to see how many people have gotten away with the 5th amendment manoever tho. Is there any data available?

This case study could be instructive:
Does 5th Amendment Protect You During an Audit?

February 18, 2011 in Small Businesses Taxes with 1 Comment

If you’re ever audited by the IRS, don’t rely on your 5th Amendment privilage against self-incrimination to protect you. A self-employed architectural consultant tried using the 5th Amendment as a defense but got shot down in Tax Court last week.

The consultant, a Mr. Raeber, was audited by the IRS for his Schedule C deductions in 2006 and 2007. The IRS asked Mr. Raeber to substantiate his deductions — which totaled more than $250,000 each year.

Rather than trying to prove his deductions, Mr. Raeber instead refused to provide substantiation, arguing that the substantiation requirement violates his 5th Amendment rights. In Tax Court, Mr. Raeber stated that the fact that he signed his tax returns under penalty of perjury constitutes substantiation (look at the small print at the bottom of Form 1040 to see what he’s talking about).

The Tax Court didn’t buy Mr. Raeber’s argument. According to the Court, the 5th Amendment doesn’t apply in cases where a taxpayer is not facing criminal charges. From the Court ruling:

    We have long held that signing a return under penalty of perjury is not sufficient to substantiate its accuracy…. (H)olding that a taxpayer does not satisfy his burden to substantiate claimed business expenses by merely signing his return under penalty of perjury and testifying to its accuracy, without producing additional evidence….

    Petitioner failed to introduce any other evidence to substantiate his claimed business expenses, asserting instead his Fifth Amendment privilege against self-incrimination. The Court is not aware of any pending or likely criminal investigation of petitioner. The privilege against self-incrimination does not apply where the possibility of criminal prosecution is remote or unlikely. Petitioner’s baseless Fifth Amendment claim cannot stand in the way of a determination of his civil tax liability.


During the court proceedings, the Tax Court offered Mr. Raeber another chance to offer substantiation of his deductions, but he continued to argue for his 5th Amendment rights. That stance cost him about $180,000 in additional taxes owed, plus another $36,000 of accuracy related penalties for negligence or disregard of the tax law. http://dinesentax.com/250/does-5th-amendment-protect-you-during-an-audit

Basically, what it boils down to is that you must file a return. Having filed a return, you provided the information for the return voluntarily, therefore you have no Fifth Amendment safety from your already given testimony regarding your return. When the IRS comes knocking, they're asking to see the proof of your [already made] claims. You can invoke the 5th in regards to a question from them if answering such a question would incriminate you, but they still get to dissect your proof of your adequate filing. If you tried hiding the evidence of your guilt by, say, not producing a receipt (attempting to invoke the Fifth), then such receipt would have to be deleted from your initial return, and your filing would have to be amended appropriately. You've already signed your return asserting that your original filing was true under penalty of perjury, though. That could put you in a hard place.

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Randall
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posted November 23, 2013 10:34 PM     Click Here to See the Profile for Randall     Edit/Delete Message   Reply w/Quote
There's no Handbook for Special Agents? Unlike the supposed law that requires the filing of tax returns, this actually exists. So, let's take your advice and Google it, shall we? Well, I'm not saying anything bad about your Googling skills, but... I guess we can just chalk it up to your ADD, since it is the very first thing that comes up in a Google search of: IRS Handbook for Special Agents. Now, really, how difficult was that?

http://books.google.com/books/about/Handbook_for_special_agents_Intelligence. html?id=bxInAQAAMAAJ

The book can be purchased from the Freedom of Information Room, Internal Revenue Service, 1111 Constitution Avenue, N.W., Washington, D.C. 20224

The first 100 pages is free, but you will have to pay a small copying fee for the remaining ages.

You can also get it in law libraries.
http://www.worldcat.org/title/handbook-for-special-agents/oclc/19450302

Here is another search with a photograph of the cover:
http://books.google.com/books/about/Handbook_for_Special_Agents_Intelligence. html?id=e3OktwAACAAJ

Are we in agreement that the book exists?

I also had no trouble finding excerpts on-line through a simple Google search.

INTERNAL REVENUE SERVICE’S “HANDBOOK FOR SPECIAL AGENTS (CRIMINAL INVESTIGATION INTELLIGENCE DIVISION) on page 9781-88, section 342.12 Books and records of an individual states: “An individual taxpayer may refuse to exhibit his books and records for examination on the grounds that compelling him to do so might violate his right against self-incrimination under the 5th Amendment and constitute an illegal search and seizure under the 4th Amendment."

As for the tax court case, the subject for discussion is that you can't be forced to submit to an audit IF you object on constitutional grounds. In the case you posted, all the gentleman had to do was swear under Affidavit, and the burden of proof then falls to the IRS. You ask the auditor the two questions. Audit over. If you get summoned, you show up. Then you ask the two questions. An audit is voluntary. In tax court, you cannot claim a blanket 5th (not to be a witness against oneself, which is the right, not the privilege, because you already waived that right when you voluntarily filed the return). You see, the act of filing a tax return causes us the waive our 5th Amendment right. We choose to give the government information that it can use against us. You would have to raise the privilege (not right) against self-incrimination, because any information you give could create a chain of evidence to prosecute you criminally. You have to claim the 5th with each question asked of you (not a blanket 5th), except for general information, such as name, birth date, etc.

All the government can do is disallow your deductions, creating a higher tax liability, which you can then frustrate with an Affidavit.

But seriously, in most cases, if you refuse to submit to an audit, that's typically the end of it. That's because issuing a summons is "not recommended," because "it would adversely affect voluntary compliance." In other words, if word got out that you can also refuse to submit your books and records under power of a summons, it might prove problematic to the IRS' bluff tactics that get you to "volunteer" to audits by thinking they are compulsory.

So, you can squelch an audit quite easily. If the IRS disallows any deductions, you file an Affidavit. They then have to prove that your deductions are false. Almost impossible to do. Of course, one should only file an Affidavit when one is being truthful. A taxpayer goes to great expense of time and money to keep accurate records, waives his Fifth Amendment rights by filing a tax return, and for his efforts gets the government calling him a liar. IRS, believe my sworn statement, or F off! If you can prove I lied, go ahead. But I don't have to help you.

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Randall
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posted November 23, 2013 11:02 PM     Click Here to See the Profile for Randall     Edit/Delete Message   Reply w/Quote
Found some interesting material when I searched for the Handbook:

1. 26 CFR Part 301.7602-1 Examination of books and witnesses: Here straight out of the horse’s mouth the Code of Federal Regulations states: “This summons power may be used in an investigation of either civil or criminal tax related liability.” It further states that the IRS can use this fishing tool to suck information out of you to use against you, so long as they have not yet referred your case to the Justice Department for investigation or prosecution.

So, the IRS will delay the referral to the Justice Department until they got as much information out of you as they can during the summons and then they will refer you to the Justice Department for investigation and prosecution.

2. INTERNAL REVENUE SERVICE’S “HANDBOOK FOR SPECIAL AGENTS (CRIMINAL INVESTIGATION INTELLIGENCE DIVISION) on page 9781-88, section 342.12 Books and records of an individual states: “An individual taxpayer may refuse to exhibit his books and records for examination on the grounds that compelling him to do so might violate his right against self-incrimination under the 5th Amendment and constitute an illegal search and seizure under the 4th Amendment…” There it is, the IRS telling their own best agents that they cannot legally force you to give them any documents.

3. United States v. Argomamiz, 925 F.2d 1349 (11th Circuit, 1991): This court case shows how a witness may properly assert the 5th Amendment in an IRS summons and that a blanket refusal to produce records or testify is not the proper way to assert the 5th Amendment.

4. Internal Revenue Service memorandum: From an IRS attorney in Denver, which he states that the 5th Amendment protects the individual discussed in that case and in effect, “The summons are not enforceable…”

5. United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), shows how the 5th Amendment protects a person asserting privilege from producing certain business records, and that even the act of production of documents involves testimonial self incrimination.

6. United States v. Troescher, 99 F.3d 933 (9th Circuit, 1996) Another court case in which the court stated that the proper time to bring up the 5th Amendment is when you are “presented with specific questions” and you can take the 5th to individual questions in an IRS Summons proceeding.

7. Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814 (1951): This 1950s Supreme Court case show that even gangsters have a right to assert the 5th Amendment. The court explains the evils of forced testimony and why it was adopted in the American System of Laws.

8. United States v. LaSALLE NATIONAL BANK, 437 U.S. 298, 98 S.Ct. 2357, 57 L.Ed.2d 221 (1978): Here the Supreme Court verifies what you already knew in the CFR quoted above; that an IRS summons is civil and criminal in nature, and until the IRS recommends investigation of you to the Justice Department, the IRS can use this summons power to gather information about you.

9. Fisher v. United States, 425 U.S. 391, 409, 48 L.Ed. 2d 39, 96 S. Ct. 1569 (1976). The Fifth Amendment privilege against self-incrimination "protects a person against being incriminated by his own compelled testimony or communications."

10. Kastigar v. United States, 406 U.S. 441, 445, 32 L. Ed. 2d 212, 92 S. Ct. 1653 (1972) Privilege "can be asserted in any proceeding, civil or criminal, administrative, or judicial, investigatory or adjudicatory."

11. United States v. Roundtree, 420 F2d 845, 852 (5th Cir. 1969).The assertion of the privilege may not be a blanket refusal to produce or to testify.

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Randall
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posted November 23, 2013 11:07 PM     Click Here to See the Profile for Randall     Edit/Delete Message   Reply w/Quote
Section 342.12 of the Handbook for Special Agents:

The privilege against self-incrimination does not permit a taxpayer to refuse to obey a summons issued under IRC 7602 or a court order directing his appearance. He is required to appear and cannot use the Fifth Amendment as an excuse for failure to do so, although he may exercise it in connection with specific questions. He cannot refuse to bring his records, but may decline to submit them for inspection on Constitutional grounds.

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Randall
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posted November 23, 2013 11:31 PM     Click Here to See the Profile for Randall     Edit/Delete Message   Reply w/Quote
I would be remiss if I did not quote the code section in its entirety. You better actually state your objection on 5th Amendment grounds, or else refusal to submit to a summons can be used in a trial against you to build a case of willfulness (if you merely refuse to produce the records).

342.12 Books and Records of An Individual

(1) An individual taxpayer may refuse to exhibit his/her books and records for examination on the ground that compelling him/her to do so might violate his/her right against self-incrimination under the Fifth Amendment and constitute an illegal search and seizure under the Fourth Amendment [Boyd v. U.S.; U.S. v. Vadner). However, in the absence of such claims, it is not error for a court to charge the jury that it may consider the refusal to produce books and records, in determining willfulness (Louis C. Smith v. U.S.; Beard v. U.S.; Olson v. U.S.; Myres v. U.S.).

(2) The privilege against self-incrimination does not permit a taxpayer to refuse to obey a summons issued under IRC 7602 or a court order directing his/her appearance. He/she is required to appear and cannot use the Fifth Amendment as an excuse for failure to do so, although he/she may exercise it in connection with specific questions (Landy v. U.S.). He/she cannot refuse to bring his/her records, but may decline to submit them for inspection on constitutional grounds. In the Vadner case, the government moved to hold a taxpayer in contempt of court for refusal to obey a court order to produce his/her books and records. He refused to submit them for inspection by the Government, basing his refusal on the Fifth Amendment. The court denied the motion to hold him in contempt, holding that disclosure of his assets would provide a starting point for a tax evasion case.

(3) Where records are required to be kept as an aid to enforcement of certain regulatory functions enacted by Congress, such records have been held public records, whose production may be compelled without violating the Fifth Amendment. This reasoning has also been applied in some income tax evasion cases (Falsone v. U.S.; Beard v. U.S.). Other income tax cases have stated that compulsory production of a taxpayer’s books and records for use in a criminal prosecution would violate the constitutional protection against self-incrimination. There has not yet been any Supreme Court decision holding the public records doctrine applicable in income tax cases.

(4) The decision of the Supreme Court in Andresen v. Maryland appears to have resolved conflicting judicial precedents regarding the use of search warrants to seize books and records of financial transactions. IN this case the Court held that the search of Andresen’s office for business records, their seizure and subsequent introduction into evidence did not offend the Fifth Amendment. Although the seized records contained statements that the accused had committed to writing, he was never required to say anything. The search for an seizure of these records was conducted by law enforcement officers and introduced at trial by prosecution witnesses.

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Randall
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posted November 23, 2013 11:42 PM     Click Here to See the Profile for Randall     Edit/Delete Message   Reply w/Quote
Bibliographic information

QR code for Handbook for special agents, Intelligence Division

Title Handbook for special agents, Intelligence Division: Internal revenue manual, Part 9900

Author United States. Internal Revenue Service

Publisher Dept. of the Treasury, Internal Revenue Service, 1975

Original from University of Minnesota

Digitized Jul 27, 2011

Length 250 pages

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Randall
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posted November 23, 2013 11:44 PM     Click Here to See the Profile for Randall     Edit/Delete Message   Reply w/Quote
An audit is without question a fishing expedition, and this is barred by the 4th Amendment. If you submit to an audit, you do so voluntarily, and in doing so, you waive your rights. Unlike a tax return, there is no criminal penalty for refusal to submit to an audit.

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Randall
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posted November 24, 2013 12:55 AM     Click Here to See the Profile for Randall     Edit/Delete Message   Reply w/Quote
A reasonable search is one where the government has probable cause to believe that one possesses something illegal. A search warrant is signed by a judge based upon probable cause, and it allows law enforcement to search for that specific item. In the warrant, they must describe clearly what is to be seized and the limited area that is to be searched. For example, if looking for a stolen tv, they cannot open drawers.

But an IRS search through your books and records is a fishing expedition, because the government has no probable cause that you did anything wrong or that you have sworn falsely on your return. The IRS merely wants to fish through your records to see if you MAY have done something wrong. Since such expeditions are barred by the Constitution, the only way the government can get your books and records is if you are fooled into giving them up voluntarily.

Don't take my word for it. Here's what the Supreme Court said in the landmark ruling of Boyd v. The United States:

It does not require actual entry upon premises and search for and seizure of papers to constitute an unreasonable search and seizure within the meaning of the Fourth Amendment; a compulsory production of a party's private books and papers, to be used against himself or his property in a criminal or penal proceeding, or a forfeiture, is within the spirit or meaning of the Amendment.

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Randall
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posted November 24, 2013 02:15 AM     Click Here to See the Profile for Randall     Edit/Delete Message   Reply w/Quote
I do commend you, AG, for noting that information given on a tax return is done so voluntarily. In fact, the government uses "voluntary" and voluntary compliance" quite a bit in reference to the filing of a tax return. Why do you suppose that is? The IRS instructs its employees to promote voluntary compliance. Why not just promote compliance? Why does the IRS instruct its employees in securing a valid voluntary income tax return from the taxpayer? Why not just secure a valid tax return? Why aren't other laws phrased that way? Have you ever been pulled over by a police officer and asked why you failed to voluntarily comply with the speed limit? Of course not. You have a legal duty to comply with every law--whether murder or speeding--and you cannot be forced to comply by a voluntary duty. So, why such a thorough insertion of the word voluntary in tax publications? No other law refers to voluntary compliance, and in contrast, what then is compulsory compliance?

I do have a simple question for your wife, since she is an attorney: Can the government ever require you to be a witness against yourself?

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Catalina
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posted November 24, 2013 01:37 PM     Click Here to See the Profile for Catalina     Edit/Delete Message   Reply w/Quote
Meanwhile the nonracist Dr is being patted on the back for being a BLACK conservative. His colour is supposed to immunize him from criticism of his argument cause, hey, one black man should be able to criticize another without being criticized himself.

After all, even though he is Black, he made it to high respect in his field. Affirmative action helped him but he thinks it is bogus, he would've made it anyway. Though we'll never know that, will we?

And he got audittef, like hundreds of thousands of other people, so it MUST be that Obama himself singled him out.

Rating: Crock

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Ami Anne
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posted November 24, 2013 04:38 PM     Click Here to See the Profile for Ami Anne     Edit/Delete Message   Reply w/Quote
so it MUST be that Obama himself singled him out.

Dr Carson shows NObama up and that can't be tolerated by NoBama.

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Catalina
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posted November 24, 2013 05:46 PM     Click Here to See the Profile for Catalina     Edit/Delete Message   Reply w/Quote
You talk through your hat a lot, Ami... You are making up facts when you assume a)that Obama worries about people disagreeing with him or b) that it is anything but coincidence Carson was auditted. Maybe there is a connection but when you convict someone on assumption you are no better than a lynch mob.

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AcousticGod
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posted November 25, 2013 02:38 PM     Click Here to See the Profile for AcousticGod     Edit/Delete Message   Reply w/Quote
Randall, I found the 1975 book, which is the one you link to each time. I haven't found any MODERN book of that title. Given how often tax code changes, I would expect there to be an updated book, wouldn't you? And wouldn't such a book reside on the IRS website?

quote:
In the case you posted, all the gentleman had to do was swear under Affidavit, and the burden of proof then falls to the IRS.


I don't think this is a true statement.

quote:
All the government can do is disallow your deductions, creating a higher tax liability, which you can then frustrate with an Affidavit.

Not only creating a higher tax liability, but also showing that you perjured yourself. Your signature on your return acts as an Affidavit. If you later give another Affidavit to get out of substantiating your first one, I don't think it's going to fly. This is concerning, especially because you are planning on being a lawyer. This kind of thing could get YOU, as the lawyer, into criminal trouble, because you're advising your client with an interpretation of the law that is incorrect, and you -as the lawyer- are supposed to know that.

quote:
They then have to prove that your deductions are false. Almost impossible to do.

Not at ALL hard to do. All they have to say to the judge is that no documentation exists to substantiate the claims of truthfulness. Judges are far more practical than you seem to think. I'm confident that by the end of your schooling, you will know the truth of this.

quote:
Found some interesting material when I searched for the Handbook:

1. 26 CFR Part 301.7602-1 Examination of books and witnesses: Here straight out of the horse’s mouth the Code of Federal Regulations states: “This summons power may be used in an investigation of either civil or criminal tax related liability.” It further states that the IRS can use this fishing tool to suck information out of you to use against you, so long as they have not yet referred your case to the Justice Department for investigation or prosecution.


But this isn't from the Handbook, it's from a website that hopes you'll believe false things about tax law. It says [before you ever get that far]:

    You are strongly encouraged to fully seek out and verify the accuracy and correctness of the truths expressed in this work so that you can take full responsibility for its use. If you are not prepared to seek out and verify the truth for yourself, you should first consult an officer of the court (attorney).

Such an attorney, accountant, or an enrolled agent would set you straight.

quote:
5. United States v. Doe, 465 U.S. 605, 104 S.Ct. 1237, 79 L.Ed.2d 552 (1984), shows how the 5th Amendment protects a person asserting privilege from producing certain business records, and that even the act of production of documents involves testimonial self incrimination.

Great. Using a child porn case as an example. Here's a break-down of what happened in that case: http://www.applieddiscovery.com/ws_display.asp?f ilter=Case%20Summaries%20Detail&item_id={87BDDBC8-BD7F-445A-9C93-580BCE3020D8}

    The court distinguished the situation from a recent decision in the District of Colorado, United States v. Fricosu, where the government knew that the defendant had encrypted contents on the drives from conversations recorded with her ex-husband and alleged co-conspirator. Where the government has independent knowledge of the contents, location, or existence of the sought-after documents, the court said that Fifth Amendment protection would not apply.

The court rightly assessed that the 5th could be plead as there was no evidence that the person KNEW what was on his hard drive (under encryption). Not exactly an apples to apples comparison of a tax situation in which you are asserting something about your business up front that may later be challenged.

quote:
(4) The decision of the Supreme Court in Andresen v. Maryland appears to have resolved conflicting judicial precedents regarding the use of search warrants to seize books and records of financial transactions. IN this case the Court held that the search of Andresen’s office for business records, their seizure and subsequent introduction into evidence did not offend the Fifth Amendment. Although the seized records contained statements that the accused had committed to writing, he was never required to say anything. The search for an seizure of these records was conducted by law enforcement officers and introduced at trial by prosecution witnesses.

Pay attention to this one. Plead the 5th, so law enforcement got a warrant. The legal search and found documents were used against the person who plead the 5th. Woe to you if you plead the 5th because you're trying to hide illegal fraud.

quote:
Publisher Dept. of the Treasury, Internal Revenue Service, 1975

I noticed that.

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An audit is without question a fishing expedition, and this is barred by the 4th Amendment.

It's obviously not barred, or else it wouldn't occur.

    Not Cooperating in an Audit—When You Have Something to Hide

    If you have some “dirty laundry,” it’s in your best interest not to cooperate in, or even go to, an audit appointment. For example, if your bank records show deposits in great excess of your reported income or you claimed phony deductions, it may be wiser to suffer the consequences of skipping an audit appointment. Blurting something out could earn you a visit from the criminal investigation division, or CID. Never say “I guess you caught me, ha, ha,” or “I didn’t think you would find that account.” On hearing such things, auditors are instructed to stop an audit and refer the case to CID.* (See Chapter 10.)

    When you don’t show up, the IRS will take one of three actions:

    Conduct the audit without you. The IRS may also examine tax years not covered by the initial audit. The auditor may look at all open years—returns due and filed within the past three years. And if the auditor suspects serious misdeeds, he may go back as far as six years. At the conclusion, the IRS will issue a report disallowing all items listed as questionable. A month or so later you’ll receive a bill. Depending on the circumstances, you may want to accept the bill and move on with your life.

    Contact you again. You may be contacted by the auditor and asked why you are not cooperating. Eventually, she’ll give up and issue a report, finding unreported income or disallowing most of your deductions and exemptions. A tax bill will follow.

    Serve a summons and order you to appear. A summons is a legally enforceable order and you could be held in contempt of court—and even jailed—if you ignore it. See a tax attorney before making your next move.

    tip

    Even if you skip the audit, you can contest the outcome by going to tax court. (See Chapter 5.) The strategy is to skip the audit so as to keep the auditor from looking into your records. By going to court, you pick the items to contest and can stay away from the problem areas. Before taking this approach, however, check with a tax professional, preferably a tax attorney. http://www.taxattorneydaily.com/topics/ch-3-winning-your-audit.php#what-not-to -bring-to-an-audit

* Criminal Investigation Division

quote:
the only way the government can get your books and records is if you are fooled into giving them up voluntarily.

They can serve a warrant to search and seize.

    Also, any notion that "testimonial" evidence may never be seized and used in evidence is inconsistent with Katz v. United States, 389 U.S. 347 (1967); Osborn v. United States, 385 U.S. 323 (1966); and Berger v. New York, 388 U.S. 41 (1967), approving the seizure under appropriate circumstances of conversations of a person suspected of crime. See also Marron v. United States, 275 U.S. 192 (1927)...... It is also clear that the Fifth Amendment does not independently proscribe the compelled production of every sort of incriminating evidence but applies only when the accused is compelled to make a testimonial communication that is incriminating. http://en.wikipedia.org/wiki/Boyd_v._United_States

quote:
I do commend you, AG, for noting that information given on a tax return is done so voluntarily.

Thanks.

quote:
In fact, the government uses "voluntary" and "voluntary compliance" quite a bit in reference to the filing of a tax return. Why do you suppose that is?

Not for the reason you suppose. Don't ever try to base an argument on such a notion. You'll lose. Taxes aren't voluntary, and I don't want anyone getting the wrong idea about such things.

quote:
The IRS instructs its employees to promote voluntary compliance. Why not just promote compliance? ... No other law refers to voluntary compliance, and in contrast, what then is compulsory compliance?

The process of auditing is already arguably hugely wasteful, but there has to be some enforcement for a law to mean anything. You would promote voluntary compliance to avoid further waste of taxpayer money pursuing a course of action involving law enforcement and the courts. Reasonable, right?

quote:
I do have a simple question for your wife, since she is an attorney: Can the government ever require you to be a witness against yourself?

The alternative to "being a witness against yourself" is far more gruesome and stressful. I don't want that point to be lost on anyone.

I did some CLEs with my wife over the weekend. These are continuing education courses done by panels of lawyers and justices, and one of the take aways, for me, is that the law respects reasonable presentation. One of the courses was regarding the process of filing an appeal. There the justice and the lawyer that assists the justice made very clear that they look into everything in detail. No amount of improper interpretation of case law is going to stand. By the time an appeal goes to court, all of the sitting justices will have expert analysis of the cases (via their assisting attorneys), and will have already met regarding the details of the case.

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Ami Anne
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