United States District Court, S.D. Texas, Houston Division
MEMORANDUM & ORDER
P. ELLISON, UNITED STATES DISTRICT JUDGE.
before the Court is the Request for Grant of Immunity Against
Potential Self-Incrimination filed by Respondent John Parks
Trowbridge, Jr. (Doc. No. 14.) Petitioner, the United States
of America through the Internal Revenue Service (IRS), has
filed a Response out of time, as well as a motion asking this
Court to accept its late response. (Doc. Nos. 16, 17.) Based
on consideration of the filings and applicable law, the
IRS's motion for acceptance of its late response is
granted, and Respondent Trowbridge's request is denied.
not the first fight between these litigants to find its way
into federal court. See, e.g., Trowbridge v.
Internal Revenue Service, No. 4:13-cv-1850 (S.D. Tex.
2013-14); United States v. Trowbridge, No.
4:99-mc-387 (S.D. Tex. 1999-2001). The story goes back at
least to 1996, when the IRS conducted an examination
concerning tax years 1991 to 1995. (Doc. No. 21 at 13.) Other
examinations and investigations followed, including an
apparently long-lasting criminal investigation. (Id.
Trowbridge's telling, his issues arise from the IRS's
“fail[ure] to identify any particular statute that
makes [him] liable to tax.” (Id. at 15.) He
says he has repeatedly asked the IRS to identify its
statutory taxing authority, and he insists that no federal
authority has ever attempted to answer his question.
(Id. at 17.) Without specific guidance, the
complexity of the Internal Revenue Code is too great, and so
he “cannot in good conscience or under penalty of
perjury” file a tax return. (Id. at 16.) The
patent frivolousness of these and other arguments has brought
Trowbridge consistent defeat--as well as sanctions,
oftentimes--in previous disputes. See United States v.
Trowbridge, 591 F. App'x 298 (5th Cir. 2015);
Trowbridge v. C.I.R., 378 F.3d 432 (5th Cir. 2004);
United States v. Trowbridge, 251 F.3d 157 (5th Cir.
present dispute reached this Court in June 2017, when the IRS
filed a petition to enforce a summons for Trowbridge to
appear, testify, and produce documents so that his tax
liability for the years 2011 to 2014 could be calculated.
(Doc. No. 1.) This Court issued an Order to Show Cause (Doc.
No. 2) and, after a hearing, an order compelling compliance
with the IRS's summons (Doc. No. 11). The Court also
denied motions for dismissal and summary judgment that
Trowbridge had filed in the interim. (Doc. Nos. 4, 10.)
October 2, 2017, Trowbridge appeared at the IRS's office
to meet with Revenue Agent Kendria Bruno and Special Counsel
Lewis Booth. (Doc. No. 15 at 4-5.) Early in their interview,
before Bruno or Booth had raised any specific issues,
Trowbridge sought assurance that he would not face criminal
prosecution. (Id. at 9.)
explained that Bruno worked on the civil side of the IRS and
wanted only to determine Trowbridge's tax liability.
(Doc. No. 15 at 9.) He clarified that no criminal
investigation was underway and no referral had been made to
the U.S. Department of Justice. (Id. at 9-10.) Booth
refused, however, to guarantee that a criminal prosecution
would never occur, given the possibility that the
investigation could uncover “a clear violation of the
criminal statutes.” (Id. at 9.) He then
informed Trowbridge of United States v. Tweel, 550
F.2d 297 (5th Cir. 1977), which excludes evidence in criminal
prosecutions obtained by deliberately deceiving the defendant
about the criminal nature of an investigation against him or
explanation of the distinction between civil and criminal
investigations went on at some length. (Doc. No. 15 at 9-36.)
Booth and Trowbridge also discussed and disagreed on the
application of the Fifth Amendment privilege against
self-incrimination. (Id. at 36-41.) Bruno then took
over. Her questions about Trowbridge's place of residence
prompted Trowbridge to invoke the Fifth Amendment.
(Id. at 51.) Trowbridge then answered certain
questions and invoked the Fifth Amendment for others.
(Id. at 52-62.) Finally, Trowbridge refused to
produce any documents for the same reason he refused to
answer questions, which brought the interview to an end.
(Id. at 62-63.)
the interview, Trowbridge also tried to make his core
argument against tax enforcement--the IRS's failure to
identify “which tax would be applied” to him,
among the many on the statute books. (Doc. No. 15 at 42.)
Unlike the protracted discussion of the distinction between
civil and criminal proceedings, discussion of this idea was
brief. Booth cut Trowbridge off, warning that he was
“veering close to arguments that the Government thinks
may be frivolous in nature.” (Id. at 43.)
U.S. Constitution gives Congress the power to lay and collect
taxes. U.S. Const. Art. 1, § 8, cl. 1. The Sixteenth
Amendment specifically authorizes taxes on incomes. U.S.
Const. amend. XVI. The statutory framework for levying,
calculating, and collecting taxes is the Internal Revenue
Code, found in Title 26 of the U.S. Code. The Internal
Revenue Code gives district courts “jurisdiction by
appropriate process to compel [the] attendance, testimony, or
production of books, papers, or other data” of
“any person summoned under the internal revenue
laws.” 26 U.S.C. § 7402(b). Another provision, 26
U.S.C. § 7604(a), confers the same authority.
“[T]he effective operation of the revenue system
requires that the Commissioner [of Internal Revenue] be free
to inspect taxpayers' records in order to ensure
compliance with the revenue laws.” United States v.
Roundtree, 420 F.2d 845, 850-51 (5th Cir. 1969).
it is unclear whether a given tax investigation will lead to
criminal proceedings. The IRS often must see the
taxpayer's records before it can make that
determination.” Roundtree, 420 F.2d at 850
(citing United States v. Powell, 379 U.S. 48, 53-54
(1964)). “It would be a misuse of the tax summons for
the IRS to endeavor to use it to obtain evidence for use in
an existing criminal prosecution.” Venn v. United
States, 400 F.2d 207, 210 (5th Cir. 1968). In addition,
“if the purpose of the summons is … solely to
build a criminal prosecution, the courts will not enforce the
summons.” Roundtree, 420 F.2d at 847.
“However, the mere fact that the evidence obtained
through the summons may later be used against the taxpayer in
a criminal prosecution is no barrier to enforcement [of the
summons].” Venn, 400 F.2d at 210-11.
the Fifth Amendment privilege against self-incrimination is
asserted under these circumstances, “the burden of
proof is on the taxpayer.” Roundtree, 420 F.2d
at 851 (citing Powell, 379 U.S. at 58). The
privilege against self-incrimination “applies only when
the possibility of self-incrimination is a real danger, not a
remote and speculative possibility.” Steinbrecher
v. C.I.R., 712 F.3d 195, 197 (5th Cir. 1983) (citing
Zicarelli v. New Jersey StateComm'n of
Investigation, 406 U.S. 472, 478 (1972)). “The
witness is not exonerated from answering merely because he
declares that in doing so he would incriminate himself--his
say-so does not of ...