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Mark Matthews Quoted in Tax Notes, Defense Bar Questions Government Wins on Required Records Doctrine

December 17, 2012, Tax Notes
Excerpt taken from the article.

Despite having won in three federal courts of appeal, the government is misguided in its position that individuals cannot assert a Fifth Amendment privilege against producing records related to ownership of offshore bank accounts, and it is impinging on basic constitutional rights, practitioners said December 6.


Mark E. Matthews of Caplin & Drysdale agreed that the defense bar is frustrated by a lack of attention to how production applies to foreign bank account reports. Although FBARs themselves may not be privileged, the Supreme Court has said that producing them can be testimonial, compelled, and incriminating such that the Fifth Amendment can be relevant, he said.

There is not a regulated, auditable industry for secret bank accounts, Matthews said, adding that the government's "whole scheme is a criminal trap." And while the government may use criminal traps, the defense bar asks whether the government is then permitted to overwhelmingly convict taxpayers entirely by occasion of their own acts, he said. The circuit courts have failed to reconcile the two doctrines, he said.

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