Catch 22 - Form 1040 and the Fifth Amendment

It is generally well known that Americans cannot be forced to testify against themselves in a criminal proceeding. That right is acknowledged in the 5th Amendment to the U.S. Constitution.  Nevertheless, the Courts have had a tough time reconciling the obligation to file a Form 1040 Individual Income Tax Return with the privilege against self-incrimination.

The Courts have held that you must assert your right in order to exercise it. If you fail to object on 5th Amendment grounds to answering questions put to you by the government, you are presumed to have waived your right. You must also assert your right in a timely fashion.

Chief among the Supreme Court cases on the issue is  Garner vs. U.S., 424 U.S. 648 (1975). There the Court found that Garner's tax returns could be used in a criminal case against him:

"Since petitioner made incriminating disclosures on his tax returns instead of claiming the privilege, as he had the right to do, his disclosures were not compelled incriminations. Here, where there is no factor depriving petitioner of the free choice to refuse to answer, the general rule applies that, if a witness does not claim the privilege, his disclosures will not be considered as having been "compelled" within the meaning of the Fifth Amendment. United States v. Sullivan, 274 U. S. 259. Miranda v. Arizona, 384 U. S. 436; Mackey v. United States, 401 U. S. 667; Garrity v. New Jersey, 385 U. S. 493, distinguished. Pp. 424 U. S. 650-655.

Of course, it's easy for the Court to say we have a free choice not to give information on a return, but if you don't file a return you could end up in jail for 'willful failure to file." If you put something like "5th Amendment" in any space where information is supposed to go, you will be charged with filing a frivolous return.  Happily, the Courts have also found that even if you don't properly assert the privilege, having asserted it is a defense against failure to file.

A § 7203 conviction cannot be based on a valid exercise of the privilege. This is implicit in the dictum of United States v. Sullivan, 274 U. S. 259 (1927), that the privilege may be claimed on a return. (Garner, supra, pg. 664.)

So the question is, "How can you sign a form 1040 tax return without waiving your 5th Amendment right against self incrimination?"

The short answer is, "You can't."

The longer answer, and ideas about how to assert your rights without going to jail, can be found in an E-book by Mr. William Conklin. You can download the e-book free from the link below:

Why No One is Required to File Income Tax Returns

I offer this book for information purposes only. It is not to be taken as tax, accounting, or legal advice. Do your own research. Make your own conclusions.