From the very inception of any initial interview, a special agent must provide the subject as follows: “first I advise you that under the Fifth Amendment to the Constitution of the United States, I cannot compel you to answer any questions or to submit any information if such answers or information might tend to incriminate you in any way. I also advise you that anything which you say and any documents you submit may be used against you in any criminal proceeding that may be undertaken. I advise you further that you may, if you wish, seek the assistance of any attorney before responding.” See Internal Revenue Manual 9.4.5.11.3.1.1 (02-‐01-‐2005).
As the rules recognize, “a witness in a criminal investigation has the right to be accompanied, represented and advised by counsel.” See Code of Federal Regulations 601.107(b)(1); see also Internal Revenue Manual 9.4.5.11.1 (02-‐01-‐2005). Critically, the special agent must “immediately terminate the interview if at any stage of an interview the subject indicates the wish to exercise rights to either withhold testimony or records or to consult with an attorney.” See Internal Revenue Manual 9.4.5.11.3.1.1 (02-‐01-‐2005). This is significant the Service designed a special form to conform to it. See Form 5228, Waiver of Right to Remain Silent and of Right to Advice of Counsel; see also Internal Revenue Manual 9.4.5.11.3.2.1.2 (05-‐15-‐2008). Additionally, “constitutional rights shall be adhered to during the interview, interrogation or conference with a person who may be a possible defendant in a criminal trial.” see also Internal Revenue Manual 9.4.5.11.2 (1) (0201-‐2005).
Equally, in the interview process, to avoid causing undue embarrassment, corrupting the investigative process, or causing undesired outcomes for the Service, agents must employ certain shared techniques in interviews including: “short questions confined to one topic that can be clearly and easily understood” and “avoid asking questions that only require yes/no answer.” See Internal Revenue Manual 9.4.5.6.2 (02-‐01-‐2005). Indeed, “when interviewing witnesses, the special agent must remain objective and refrain from making comments regarding the subject that could be construed as derogatory.” See Internal Revenue Manual 9.4.5.6.3 (5) (05-‐15-‐2008). Equally, “the special agent will not use language that could be interpreted…or might be viewed as intimidation or a threat.” See Internal Revenue Manual 9.4.5.11.3.1 (05-‐15-‐2008).
Finally, special agents must “adhere” strictly to these rights protected by the Bill of Rights in the first Amendments to the United States Constitution, and equally “must abide by any related memoranda directives that apply to advising individuals of their constitutional rights during non-‐custodial and custodial interviews.” See Internal Revenue Manual 9.4.5.11.3 (02-‐01-‐2005). These include the following below.
The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures” and this right “shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be searched.” United States Constitution Amendment IV.
The Fifth Amendment protects against the misuse and abuse of criminal process, guaranteeing that “no person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law.” United States Constitution Amendment V.
The Sixth Amendment insures the adversarial process places procedural barriers against the abuse of government agents, insuring that “in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense.” United States Constitution Amendment VI.
In conformity thereto, and with the induction of reliance by the public in the integrity and impartiality of Internal Revenue Service investigations, the service has long compelled a reading of “This Advice of Rights” at the beginning of the interview for any interview by any IRS agent of anyone who is the subject of an investigation, a corporate employee who could be implicated, or whenever a witness’; statement could be used adversely against him. See Internal Revenue Manual 9.4.5.11.3.1 (05-‐15-‐2008). This long-‐established procedure enforces the rights already protected by law, and have been continually enforced by the courts again and again.
A knowledgeable IRS defense lawyer can assert, help enforce, and guard your rights in the IRS criminal investigation process at many stages of the case before it gets too far. While the past cannot guarantee the future, it is a resume worth knowing when choosing your tax defense lawyer. Barnes Law enjoys a 90% success in preventing the government from imprisoning its clients even when only hired after a fraud audit or IRS criminal investigation has commenced, while protecting your privacy in the process. Choose wisely: your freedom, your future, and your finances often depend upon it.
