The Fifth Amendment to the U.S. Constitution provides that "[n]o person…shall be compelled in any criminal case to be a witness against himself." This privilege against self-incrimination not only protects criminal defendants from being forced to testify at trial, but it also provides all individuals with the right to refuse to answer questions that may provide a "link in the chain of evidence needed to prosecute" them.1 The ability to refuse to answer questions during an investigation is especially important in civil tax audits because responding to questions posed by an IRS revenue agent seeking additional taxes, interest and penalties may lead to a referral to a special agent who will attempt to brand the taxpayer a criminal and deprive him of his liberty. Indeed, attorneys representing taxpayers in high-risk, "eggshell" audits frequently struggle with the issue of whether (and when) the client should assert the privilege against self-incrimination.
The U.S. Supreme Court's recent decision in Salinas v. Texas2 complicates this equation. In Salinas, a plurality of the Supreme Court ruled that an individual must affirmatively assert his right to remain silent; merely refusing to answer a question is not sufficient to come within the ambit of the constitutional protection. Moreover, the court did not foreclose the possibility that the prosecution may be allowed to comment on a defendant's assertion of the privilege against self-incrimination during a non-custodial interview. Although Salinas was decided in the context of a murder investigation, professionals representing taxpayers in audits need to consider its implications in deciding how to respond to questions posed by revenue agents.
