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January 5, 2019

Statements Made to IRS Special Agents

Tax Crimes

Houston Tax Attorney

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If you are contacted by an IRS special agent for an informal meeting, can statements made during the meeting be used against you in court? The answer is “maybe.” The court addresses this in United States v. Henry, No. 2017-0001 (D. VI 2018).

Facts & Procedural History

The IRS criminal investigation unit received a tip that Henry had filed false tax return. The IRS special agent called Henry to schedule an informal conversation. They agreed to meet at an elementary school parking lot near Henry’s house.

During the meeting, the two special agents told Henry she was not under arrest but a suspect in a tax crime.

Henry was charged with the tax crime and her attorney sought to have her statements to the special agents excluded.

Excluding Self-Incriminating Statements

The 5th Amendment to the U.S. Constitution affords a right not to be compelled to testify against oneself. This right is not always available. It can be waived, with certain protections. These protections are the Miranda warnings:

[H]e has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

The Miranda warning protections are only required if the suspect is in custody at the time. This is the time where “there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.”

Was Henry in Custody?

The court considered whether Henry was in custody. Custody is generally when a suspect is not free to terminate the interview and leave.

The court noted that the IRS special agent had told Henry she was not in custody and free to leave. The IRS special agent even testified that if Henry had done so, they would have terminated the interview and went on their way. The court concluded that this factor indicated that Henry was not in custody.

Henry focused on the “own turf” factor. Henry argued that she was in custody given that she was not on her “own turf.” She argued that this means her home. The court concluded that Henry was on her own turf given that she picked the meeting location and it was close to her home.

As a result, the court admitted Henry’s statements into evidence. Presumably the statements include some admission of guilt or evidence that would help establish guilt for a tax crime.

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