The privilege against self-incrimination is one of the foundations of our criminal justice system, predating its incorporation into the Bill of Rights.1 According to the U.S. Supreme Court, the privilege was incorporated into the Constitution to serve “as a shield against high-handed and arrogant inquisitorial practices” and has survived as “a wise and necessary protection of the individual against arbitrary power.”2
The U.S. tax system relies on self-reporting by taxpayers of numerous aspects of their financial lives: income, professions, bank accounts, and claimed deductions. This system of self-reporting is naturally at odds with the privilege against self-incrimination, and often creates a dilemma for taxpayers and their lawyers during the course of criminal investigations. Commonly, a taxpayer faces the prospect that information reflected on an accurate return could provide a “link in the chain” of evidence against him. On the other hand, an ethical practitioner cannot counsel her client either not to file a required return or to file an inaccurate return as either course of action would constitute a separate crime.
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