Martin A. BRENNAN, Plaintiff-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Defendant-Appellee

United States Court of Appeals for the Sixth Circuit1984-10-22No. No. 84-1306

752 F.2d 187

Summary · law.co

Holding. The court affirmed the district court's dismissal of Brennan's action to recover the frivolous return penalty. The court held that the term "frivolous" as used in the statute is not unconstitutionally vague, that a blanket assertion of the Fifth Amendment privilege on a tax return is itself frivolous and does not warrant constitutional protection, and that the statutory procedures for imposing such fines provide adequate process.

Martin Brennan appealed a district court decision upholding an Internal Revenue Service penalty imposed under a federal statute that authorizes fines for filing frivolous tax returns. Brennan had submitted a 1982 income tax return in which he refused to provide any financial information, claiming protection under the Fifth Amendment privilege against self-incrimination. He raised six separate arguments on appeal challenging both the constitutionality of the frivolous return statute and the agency's authority to impose the penalty.

The appellate court rejected all of Brennan's contentions. The court determined that the term "frivolous" in the relevant tax code section provides sufficient clarity to inform taxpayers of prohibited conduct and does not violate constitutional vagueness standards. More substantially, the court held that a blanket invocation of the Fifth Amendment privilege on a tax return constitutes a frivolous legal position, particularly where a taxpayer offers no specific explanation of the incriminating dangers that would justify withholding financial information. The court noted that merely asserting the privilege without demonstrating concrete risks of self-incrimination does not properly invoke constitutional protection. The court also rejected arguments that additional procedural protections were required before the fine could be imposed, finding that existing statutory procedures adequately safeguard taxpayer rights.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether the term 'frivolous' in the tax statute is unconstitutionally vague
Whether a blanket Fifth Amendment assertion on a tax return is a valid constitutional claim
Whether proper invocation of the Fifth Amendment requires specific demonstration of incrimination risks
Whether pre-penalty hearing procedures are constitutionally required

Procedural posture

Brennan appealed a district court judgment dismissing his action to recover a penalty for filing a frivolous income tax return under Internal Revenue Code section 6702.

Authorities cited

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Opinion · public domain

majority opinion

PER CURIAM.

This appeal has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the record and the briefs filed by the parties, the panel agrees unanimously that oral argument is not needed. Fed.R.App.P. 34(a).

Mr. Brennan appeals from the district court’s judgment which dismissed his action to recover a portion of a fine paid pursuant to I.R.C. § 6702. 581 F.Supp. 28 This statute authorizes the Internal Revenue Service to levy a fine on one who files a frivolous income tax return. Appellant had been fined because his 1982 return was designated as frivolous under this section. In filing his return, Mr. Brennan refused to answer any financial information on the basis of his privilege against compulsory self-incrimination under the fifth amendment. On appeal the appellant makes six allegations of error.

In his first argument, the appellant contends that the term frivolous as used in section 6702 is unconstitutionally vague. Prohibiting language in a statute must be in terms that the ordinary person, exercising ordinary common sense, can sufficiently understand. Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548, 549, 93 S.Ct. 2880, 2883, 37 L.Ed.2d 796 (1973). The term “frivolous” as used in section 6702 is sufficiently clear to apprise one of the prohibited behavior. Rowe v. United States, 583 F.Supp. 1516, 1520 (D.Del.1984).

The second, third, and sixth arguments posed by the appellant, can be treated as one. He argues that it is constitutionally improper for the Internal Revenue Service to characterize his income tax return as frivolous and specious. He contends that his blanket assertion of the fifth amendment privilege against compulsory self-incrimination is a valid assertion of a constitutional right. This argument is unconvincing, as a blanket assertion of the fifth amendment privilege is a frivolous position. Baskin v. United States, 738 F.2d 975, 977 (8th Cir.1984). Asserting the fifth amendment privilege on a blank tax return will not affect a prosecution for failure to file. United States v. Heise, 709 F.2d 449, 451 (6th Cir.1983). In order to properly invoke the privilege, one must demonstrate real dangers of incrimination. Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 478, 92 S.Ct. 1670, 1674, 32 L.Ed.2d 234 (1972). The appellant has made no attempt to explain his claims of the fifth amendment privilege, despite an opportunity to do so in district court. Therefore his claims of the fifth amendment privilege are improper. He was properly fined pursuant to section 6702.

The fourth and fifth amendments can also be addressed as one. The appellant argues that a hearing is required prior to imposition of a fine pursuant to section 6702. Contrary to the appellant’s argument, he has not properly asserted the fifth amendment privilege. Thus an attempt to base this argument on the fifth amendment claims should fail. Additionally, the appellant’s rights are adequately protected by the procedures set forth in I.R.C. § 6703. Baskin v. United States, 738 F.2d at 977; see also Bob Jones University v. Simon, 416 U.S. 725, 746, 94 S.Ct. 2038, 2050, 40 L.Ed.2d 496 (1973).

Accordingly, it is Ordered that the district court judgment be affirmed pursuant to Rule 9(d)(2), Rules of the Sixth Circuit.