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UNITED STATES v. HARPER

March 31, 1975

UNITED STATES OF AMERICA, et al.
v.
ROBIN HARPER



The opinion of the court was delivered by: NEWCOMER

 Newcomer, D. J.

 Respondent Harper opposes enforcement on the grounds that compelling him to participate in the collection of war taxes violates his First Amendment rights. Respondent also claims that enforcement would violate his Fifth Amendment rights in that the subpoenaed information could be used against him in any criminal prosecution for failure to file or pay income taxes for any year after 1967. For the reasons discussed below, we find no substance in respondent's First Amendment claim but we do find that respondent could reasonably fear that the information the IRS seeks might be used against him in a criminal proceeding, and we thus decline to enforce the summons.

 Facts

 Respondent Robin Harper was served with the summons which is the subject of this proceeding on June 13, 1974. The summons directed him to appear before Revenue Officer Mary Wright on June 25, 1975 to give testimony relating to the collection of his tax liability for the tax years 1962-1967. The summons also demanded that he bring with him "all documents and records in your possession or control which are necessary to enable a representative of the Internal Revenue Service to complete a current financial statement for [respondent]." Harper appeared before Officer Wright on June 26, 1975 (after having been granted a one-day extension), but he refused either to produce any records of his assets or income or, when asked to do so by Officer Wright, to fill out the financial statement attached to the summons. *fn1" The government then moved, pursuant to 26 U.S.C. § 7604(a), *fn2" to have this Court enforce the summons.

 The basic authority for the issuance of a summons such as the one above is 26 U.S.C. § 7602, which states:

 
" Examination of books and witnesses
 
"For the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax or the liability at law or in equity of any transferee or fiduciary of any person in respect of any internal revenue tax, or collecting any such liability, the Secretary or his delegate is authorized --
 
"(1) To examine any books, papers, records, or other data which may be relevant or material to such inquiry;
 
"(2) To summon the person liable for tax or required to perform the act, or any officer or employee of such person, or any person having possession, custody, or care of books of account containing entries relating to the business of the person liable for tax or required to perform the act, or any other person the Secretary or his delegate may deem proper, to appear before the Secretary or his delegate at a time and place named in the summons and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry; and
 
"(3) To take such testimony of the person concerned, under oath, as may be relevant or material to such inquiry." (Emphasis Added)

 The government's stated purpose for issuing this summons was to aid in the collection of respondent's taxes for the years 1962-1967. That respondent owes these taxes, as well as the precise amount he owes, has already been determined by the United States Tax Court. Robin Harper v. Commissioner of Internal Revenue, Tax Court Memo 1973-214; P 73,214 P-H Memo TC. In the case before the Tax Court, respondent challenged the Commissioner's deficiency determinations on grounds similar to those he raises here, i.e., that payment of taxes for use in war would violate his religious beliefs and, therefore, his First Amendment rights. The Tax Court, relying on Susan Jo Russell, 60 T.C. 942 (1973), rejected respondent's arguments. *fn3" Respondent's challenge to a deficiency determination for taxable year 1971 met a similar fate. *fn4" Robin Harper v. Commissioner of Internal Revenue, 33 T.C.M (CCH) 567, T.C. Memo 1974-117, T.C.Mem.(P-H)740117 (1974).

 Revenue Agent Wright is presently attempting to collect the portion of this amount which represents taxes owed for years 1962-1967, an amount equal to approximately $1,400. (There is no explanation in the record of why IRS has limited its collection efforts to this period). She testified at the hearing on this matter that she tried to discover respondent's assets and sources of income from third party sources but was unable to do so. *fn7" She stated that the summons and subpoena which she served on respondent represented the only way she can locate monies on which a lien could be placed to satisfy respondent's tax obligations.

 Respondent's First Amendment Claim

 It should be stated preliminarily that the summons enforcement procedure provides respondent with an opportunity to challenge the summons on any appropriate ground. Reisman v. Caplin, 375 U.S. 440, 11 L. Ed. 2d 459, 84 S. Ct. 508 (1964). Respondent's First and Fifth Amendment objections are both appropriate grounds to raise at this stage of the proceedings.

 Respondent claims that answering the summons would directly involve him in the collection of war revenue. *fn8" Respondent asserts that such coerced involvement violates his religious and moral beliefs, in contravention of the First Amendment's "free exercise of religion" clause.

 This Court does not question the sincerity and intensity of respondent's opposition to war, or spending for war. Nor do we doubt that this opposition is grounded in deeply held religious beliefs rather than philosophical or political ones. Although respondent was not permitted to make a record of his past opposition to income taxes at the hearing, due to this court's uncertainty as to whether such a record was appropriate, respondent has offered the exhibits to his post-hearing brief as the evidence which he would have presented on his First Amendment claim at the hearing.

 In AFSC it was determined that withholding plaintiffs' income taxes deprived them of the opportunity to refuse to pay war taxes. There was no doubt in either plaintiffs' or the government's mind that the government would ultimately secure these taxes by levying on plaintiffs' bank accounts; nevertheless, plaintiffs wanted to be able to receive their full income so that they could refuse to pay the tax on it. This Court held that the slight additional expense which the government would incur in collecting plaintiffs' tax by levy rather than ...


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