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Irwin Schiff claims that because you have a right against self incrimination and therefore it is wrong for you to have to reveal anything about what you make. Therefore, the government can levy the tax on income, but various forms and other revealing info should not be allowed.

Is this true?

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    As someone mentioned on another question about him: "Irwin Schiff was tried and convicted of tax fraud three separate times, served multiple prison sentences, and died in prison. Why anyone would consider him a reliable source of legal advice is beyond my comprehension."
    – cpast
    Commented Oct 26, 2015 at 21:07
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    Legal advice? I wouldnt take his advice. What I am wondering is whether his arguments are sound. To illustrate my point, obviously it is bad advice to tell someone to, say, try to violently overthrow the government by themselves. That doesn't mean that it is morally wrong to do so. It would depend on the government, for one thing.
    – Mr. A
    Commented Oct 26, 2015 at 21:19
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    @nomen agentis. The rules for posting here suggest that subjective questions are permissible under certain conditions, which I believe I have met. Instead of focusing on one subject, the fifth amendment, I have instead opened the entire set of topic Irwin Schiff has covered to the same question.
    – Mr. A
    Commented Oct 26, 2015 at 21:21
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    @nomen agentis - Or it could be answered by one person who phrased it as "Some may say that this means that, while others have said that this means this. At the end of the day the courts have said this means this, but there was one on the bench who dissented."
    – Mr. A
    Commented Oct 26, 2015 at 21:27
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    @Mr.A - nomen agentis made it answerable and on-topic. He is correct that such a broad question as you seem to want to pose would not be appropriate here. If you don't like what was done with this question you're welcome to try again with a different question. (You can even disclaim ownership of this question by using the "contact us" form.) NB: If you want to submit further questions along these lines you ought to first peruse the "frivolous tax arguments" law mentioned here.
    – feetwet ♦
    Commented Oct 26, 2015 at 21:38

2 Answers 2

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Since you asked, and it's a perfectly legitimate question, here's why it doesn't violate the Fifth Amendment (from Garner v. US):

The Fifth Amendment doesn't say "you can't be made to say anything that hurts you." It says "no person...shall be compelled in any criminal case to be a witness against himself." The only time Fifth Amendment protection applies is if you are being forced by the government to make a statement that could open you up to an accusation or conviction of a criminal offense. It's fairly broad (if it would help prove any aspect of the charge, you can claim immunity), but it's also restricted (you can't claim it unless it really would tend to incriminate you).

That means that you could only argue the Fifth Amendment if your tax return might help prove a criminal case against you (the fact that disclosing income leads to you needing to pay tax does not qualify as "self-incrimination"). But the amount of income is not one of those things that might incriminate you -- you can get income through all sorts of ways. The thing that is incriminating is revealing the source of the income, and you can claim Fifth Amendment privilege for that.

So:

  • The only time you could possibly claim privilege is if you were being forced into a statement that might tend to incriminate you in a criminal proceeding. A statement that makes you liable for tax doesn't mean it might incriminate you.
  • Filing an income tax return isn't inherently incriminating. The fact that you have income not included in any other part of the return (illegal income goes under "other income") doesn't imply you've committed a crime -- lots of people have other income.
  • The amount of income can't be incriminating. The source can be, but you can claim Fifth Amendment privilege for that if it might incriminate you. And lawful income under "other income" still might give rise to a reasonable fear of prosecution, so the fact that you're justified in claiming Fifth Amendment privilege in source of income doesn't mean you're guilty of a crime.

Note that there are cases where you are flat-out exempt from filing tax returns under the Fifth Amendment: Marchetti v. US and Grosso v. US found that registration and tax on gambling could be blocked by a Fifth Amendment claim, which didn't even have to be asserted at time of filing, because merely filing the special return would establish you as a gambler (heavily regulated/often criminalized at the state level). The difference with the normal income tax form is that everyone (just about) files one, and so filing it doesn't mean you're a criminal. If there was a separate line along the lines of "Income from Illegal Drug Sales," that might be one thing (anything other than $0 is inherently incriminating). But all the questions are broad, and have many legal sources of income associated with them.

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  • I think if this answer were combined with nomen's answer, it would be pretty good
    – Mr. A
    Commented Oct 26, 2015 at 23:12
  • Except I'd like to make sure its clear whether you mean what you say is what those justices reasoned, or if it is your reasoning.
    – Mr. A
    Commented Oct 26, 2015 at 23:23
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    NVM Maybe I missed your citations...or maybe you edited your post. I'm thinking about approving this answer
    – Mr. A
    Commented Oct 26, 2015 at 23:30
  • This is based off the Garner opinion (and the edit off Marchetti and Grosso, cited in Garner), although the part about what the Fifth Amendment means is just what the Fifth Amendment means (it says in the amendment "in criminal cases").
    – cpast
    Commented Oct 26, 2015 at 23:30
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    @gnasher729: Good point. That sounds like a good question (hint :-) ).
    – sleske
    Commented Oct 27, 2015 at 9:41
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There is no support for Schiff's position that the Fifth Amendment allows you to withhold from the IRS information about your income.

In United States v. Sullivan 274 U.S. 259 (1927), the unanimous Supreme Court held that:

The Fifth Amendment does not protect the recipient of such income from prosecution for willful refusal to make any return under the income tax law.

In United States v. Schiff 612 F.2d 73 (2d Cir. 1979), the trial judge noted (and the unanimous appeals court panel did not disagree with this point) that:

the Fifth Amendment does not give a person the right to withhold the required information on the return concerning items the disclosure of which would not incriminate him or tend to incriminate him, and that even as to items which might incriminate him, he is required to state the amount of his income even if he does not reveal its illegal source.

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    Every law is an opinion, except it's not an opinion. The role of judges and courts is not to discuss philosophy and whether or not something technically means this, its job is to say 'this means this until we say so otherwise.' If you want to change this then you should try to influence the supreme court in some way, but until that happens this is your answer.
    – Faraz Masroor
    Commented Oct 26, 2015 at 21:56
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    @Mr.A Your point being? If the Supreme Court overturned Marbury v. Madison, then that would become binding precedent (briefly). Likewise, if all 538 members of the Electoral College decide to disregard the popular vote and vote for the coach of the New England Patriots for President, we'd have President Belichick. Except that judges don't make wild rulings based only on personal views, and electors don't vote for the coaches of sports teams instead of the candidate they pledged to. So, it's useful to look at past court rulings (which are law).
    – cpast
    Commented Oct 26, 2015 at 22:04
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    @cpast: What Marbury v. Madison actually says is that legitimate court decisions sometimes require that judges say what the law is, implying a causal relationship between the law and what the judges write. While court decisions are presumed legitimate, that does not mean that the law magically becomes whatever the NIne declare it to be. If the Nine decide to ignore the Constitution, there may be no recognized means by which their words can be recognized as being lawless, but that doesn't make them lawful.
    – supercat
    Commented Oct 27, 2015 at 0:21
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    @Mr.A What exactly are you looking for? You mention in a comment you would like someone to "distill the actual reasoning behind those court cases." In the first case link I clicked, there was a synopsis providing exactly that. If the content of the synopsis is insufficient, then you may need to be very clear with what you expect to see (possibly in a different question), because you are likely asking for a very specific thing that others have not felt needed to be summarized in that form.
    – Cort Ammon
    Commented Oct 27, 2015 at 5:50
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    If the question is "is every one of the many judges who have all unanimously held the exact same opinion, every time it has come across the courtroom tyrannical," and you seek something besides their words and actions to judge by, then that might be a different question. Perhaps for the philosophy SE, rather than law SE. The wording starts to sound like more of an ethical question in such a case.
    – Cort Ammon
    Commented Oct 27, 2015 at 5:51

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