Bruns v. Commissioner , 98 F. App'x 811 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 26 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
RONALD C. BRUNS,
Petitioner-Appellant,
v. No. 03-9002
(T.C. No. 11356-01)
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before KELLY , Circuit Judge, BRORBY , Senior Circuit Judge, and BRISCOE ,
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Ronald C. Bruns, proceeding pro se, appeals the decision of the Tax Court
upholding deficiencies and additions to tax for 1997 as determined by the Internal
Revenue Service (IRS). We exercise jurisdiction under 26 U.S.C. § 7482(a)(1),
and affirm.
Mr. Bruns filed the underlying action in the Tax Court challenging the
amount of income imputed to him and asserting that he was entitled to personal
deductions before calculating the tax. R. Vol. I, doc. 1, at 2. The government
then sent interrogatories and a request for production of documents to Mr. Bruns
seeking information about his 1997 income and expenses, but he declined to
answer, invoking his Fifth Amendment privilege against self-incrimination. He
claimed that the information sought pertaining to income and possession of
documents could support a criminal prosecution against him for tax evasion.
Therefore, according to Mr. Bruns, he could not be compelled to produce the
information or documents requested.
The Tax Court eventually entered an order to compel discovery, but
Mr. Bruns continued to refuse to comply. As a sanction, the Tax Court ruled that
the matters covered by the discovery requests would be deemed admitted at trial.
At trial, Mr. Bruns repeated his arguments that he could not be compelled to
produce any evidence of his income for 1997. The Tax Court entered a judgment
against Mr. Bruns for $8,404.00 in income tax, plus additions to the tax.
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On appeal, Mr. Bruns renews his argument made to the Tax Court that he
was entitled to invoke a blanket Fifth Amendment privilege against producing any
information relevant to his income for 1997 because his answers and documents
could support a criminal conviction or furnish a link in the chain of evidence
needed to prosecute him for a federal crime. He also maintains that the Tax Court
erred in imposing on him the initial burden of proving that the government’s
assessment was incorrect. 1
We review the Tax Court’s decisions “in the same manner and to the same
extent as decisions of the district courts in civil actions tried without a jury.”
§ 7482(a)(1). Legal questions are subject to a de novo review, while issues of
fact are reviewed for clear error. IHC Health Plans, Inc. v. Commissioner , 325
F.3d 1188, 1193 (10th Cir. 2003). Because plaintiff is representing himself on
appeal, his pleadings will be liberally construed. See Haines v. Kerner, 404 U.S.
519, 520-21 (1972).
The Fifth Amendment privilege extends both to answers that would support
a criminal prosecution and to those that “would furnish a link in a chain of
evidence needed to prosecute the claimant for a federal crime.” Hoffman v.
United States , 341 U.S. 479, 486 (1951). The privilege applies, however, only
1
Mr. Bruns does not challenge on appeal the additions to tax so we do not
address them. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7
(10th Cir. 1994).
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where the petitioner “has reasonable cause to apprehend danger from a direct
answer. The witness is not exonerated from answering merely because he
declares that in so doing he would incriminate himself–his say-so does not of
itself establish the hazard of incrimination.” Id. (citation omitted). Rather, “[t]he
trial court is to evaluate the incriminatory potential of questions asked.” United
States v. Jones , 703 F.2d 473, 476 (10th Cir. 1983). The Fifth Amendment
privilege “may not be itself used as a method of evading payment of lawful
taxes.” United States v. Schmidt , 816 F.2d 1477, 1482 (10th Cir. 1987) (quotation
omitted).
Mr. Bruns maintains that answering the government’s interrogatories and
request for documents “could result in [his] admitting one or more elements” of
income tax evasion or other crimes. Aplt. Br. at 8-9. As the Tax Court twice
explained, Mr. Bruns has not shown that he faces a real hazard of criminal
liability, so his mere assertion of a Fifth Amendment privilege is not a valid
exercise of the privilege. R. Vol. II, doc. 34, at 9; id. , doc. 20, at 1. Mr. Bruns
relies heavily on case law from other circuits, but “we are controlled by the law of
this circuit,” United States v. Rodriguez-Mejia , 20 F.3d 1090, 1092 n.2 (10th Cir.
1994), and are not bound by the decisions of other circuits, Garcia ex rel. Garcia
v. Miera , 817 F.2d 650, 658 (10th Cir. 1987). Because Mr. Bruns has not made
the showing required in this circuit, we conclude that the Tax Court properly
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rejected his assertion of a “general and blanket privilege.” United States v. Clark ,
847 F.2d 1467, 1474 (10th Cir. 1988).
Mr. Bruns also claims that the Tax Court committed reversible error by
placing the burden on him to prove that the IRS’s determination of the taxes was
not correct. On the contrary, “[t]he taxpayer carries the burden of proving the
Commissioner’s assessment is incorrect.” Anaya v. Commissioner , 983 F.2d 186,
188 (10th Cir. 1993). Moreover, Mr. Bruns’ income was established by the Tax
Court’s sanction that deemed admitted the matters covered by the discovery
requests. 2
Furthermore, the government showed the income it imputed to
Mr. Bruns by producing authenticated documents from two entities who paid
funds to him in 1997. Accordingly, we affirm the assessment.
The judgment of the Tax Court is AFFIRMED. The mandate shall issue
forthwith.
Entered for the Court
Wade Brorby
Senior Circuit Judge
2
Mr. Bruns does not challenge the Tax Court’s sanction except to say that
his Fifth Amendment privilege should have precluded it.
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