Legality of IRS requiring taxpayers to swear to statements

Question

The IRS requires taxpayers to swear under "penalties of perjury" to their statements and figures given concerning their income. Since obviously this constitutes a potential incrimination, it would appear to violate the 7th Article of the Bill of Rights which provides that noone "shall be compelled in any criminal case to be a witness against himself". Since perjury is a criminal offense and tax fraud is also a criminal offense, it would seem the IRS is requiring taxpayers to act as witnesses against themselves. Has this been tested in court?

Answer 1

The IRS requires taxpayers to swear under "penalties of perjury" to their statements and figures given concerning their income. Since obviously this constitutes a potential incrimination

The privilege against self-incrimination applies to giving testimony that reveals that you have committed a crime, not to doing something prospectively in a way that does not violate criminal laws.

The solution is that you may truthfully report the amount of income that you have on your tax return.

Ordinarily, the information that you had a certain amount of income, without a specific description of its source, would not in and of itself be incriminating. So, it is not "obvious that this constitutes potential incrimination[.]", at least in the general case.

There might be some circumstance in which merely filling out the information on a tax return required by law and signing it under penalty of perjury would be incriminating, although this is far more narrow that your question suggests. In those circumstances, the solution would be to file an unsigned tax return accompanied by a disclaimer stating that you are not signing it under penalty of perjury as it would be potentially incriminating for you to do so would on a signed and attached explanation that explicitly claims the 5th Amendment privilege.

There is actually an IRS form for doing that or similar things on: IRS Form 8275.

This would result in serious civil tax penalties, but would probably protect you from a criminal tax law violation (at least for the failure to file offense, not necessarily from the failure to pay offense).

Answer 2

The underlying principle is that the Fifth Amendment does not protect you from being required to testify as a witness in general, even if some or all of the questions could be about incriminating matters. Unless you are actually the defendant in the trial, you must appear to testify and be sworn, and then you may claim the privilege in refusing to answer each individual question that would incriminate you. But you may be asked other questions that do not incriminate you, and you are still required to answer those.

This is how it works in court, and the same principle applies on tax returns. You are not on trial, and have not been charged with anything, so the Fifth Amendment does not give you the right to refuse to file a tax return at all, nor to file a tax return containing false statements. Rather, if the answer to one or more questions (line items) on the form would incriminate you, then you must state objections to those specific items, and truthfully fill in all the rest. Then signing the declaration that the information on your form is true, will not in itself incriminate you, nor would it perjure you (since it is a true statement), so you have no privilege against signing it.

United States v. Schiff, 612 F.2d 73 (2d Cir. 1979)

On appeal, the appellant emphasizes that a person filling out a tax form is a "witness" for purposes of the Fifth Amendment. Clearly, this is the rule. See Garner v. United States, 424 U.S. 648, 656, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976); United States v. Sullivan, supra. But the Fifth Amendment privilege does not immunize all witnesses from testifying. Only those who assert as to each particular question that the answer to that question would tend to incriminate them are protected. As the Court observed in Albertson v. Subversive Activities Control Board, 382 U.S. 70, 79, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965), the questions in the income tax return are neutral on their face and directed to the public at large rather than to a "selective group" inherently suspect of criminal activities, cf. Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968) and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968) (occupational and excise tax on gambling). Hence privilege may not be claimed against all disclosure on an income tax return.