409 U.S. 322 (1973)
On January 7, 1970, the Government filed a petition in the United States District Court for the Western District of Virginia, pursuant to 26 U. S. C. §§ 7402(b) and 7604(a), seeking enforcement of an Internal Revenue summons in connection with an investigation of petitioner's tax liability from 1964-1968.1 The summons was directed to petitioner's accountant for the production of all books, records, bank statements, cancelled checks, deposit ticket copies, workpapers and all other pertinent documents pertaining to the tax liability of the taxpayer.2
Petitioner is the sole proprietress of a restaurant.3 Since 1955 she had given bank statements, payroll records, and reports of sales and expenditures to her accountant, Harold Shaffer, for the purpose of preparing her income tax returns.4 The accountant was not petitioner's personal employee but an independent contractor with his own office and numerous other clients who compensated him on a piecework basis.5 When petitioner surrendered possession of the records to Shaffer, she retained title in herself.6
During the summer of 1969, Internal Revenue Agent Dennis Groves commenced an investigation of petitioner's tax returns.7 After examining her books and records in Shaffer's office with his permission, Groves found indications of a substantial understatement of gross income.8 Groves thereupon reported the case to the Intelligence Division of the Internal Revenue Service.9 Special Agent Jennings of the Intelligence Division next commenced a joint investigation with Groves.10 Jennings first introduced himself to petitioner, gave her Miranda warnings as required by IRS directive, and then issued the summons to Shaffer after the latter refused to let him see, remove, or microfilm petitioner's records.11
When Jennings arrived at Shaffer's office on September 2, 1969, the return day of the summons, to view the records, he found that Shaffer, at petitioner's request, had delivered the documents to petitioner's attorney.12 Jennings thereupon petitioned the District Court for enforcement of the summons, and petitioner intervened, asserting that the ownership of the records warranted a Fifth Amendment privilege to bar their production.13 Both the District Court and the Court of Appeals for the Fourth Circuit addressed the privilege claim.14 The Supreme Court granted certiorari, 405 U. S. 1038.15
Whether the taxpayer may invoke her Fifth Amendment privilege against compulsory self-incrimination to prevent the production of her business and tax records in the possession of her accountant?16
The Fifth Amendment privilege against self-incrimination is a personal privilege.17 It adheres to the person asserting it.18 It protects against governmental compulsion exerted directly upon that individual to produce incriminating evidence.19 It does not extend to bar the production of documents by a third party when the summons is directed solely to that third party and no personal compulsion is applied to the claimant.20
No. On January 7, 1970, the Government filed a petition in the United States District Court for the Western District of Virginia, pursuant to 26 U. S. C. §§ 7402(b) and 7604(a), seeking enforcement of an Internal Revenue summons in connection with an investigation of petitioner's tax liability from 1964-1968.
The summons was directed to petitioner's accountant for the production of all books, records, bank statements, cancelled checks, deposit ticket copies, workpapers and all other pertinent documents pertaining to the tax liability of the taxpayer. Petitioner is the sole proprietress of a restaurant. Since 1955 she had given bank statements, payroll records, and reports of sales and expenditures to her accountant, Harold Shaffer, for the purpose of preparing her income tax returns. The accountant was not petitioner's personal employee but an independent contractor with his own office and numerous other clients who compensated him on a piecework basis.
When petitioner surrendered possession of the records to Shaffer, she retained title in herself. During the summer of 1969, Internal Revenue Agent Dennis Groves commenced an investigation of petitioner's tax returns. After examining her books and records in Shaffer's office with his permission, Groves found indications of a substantial understatement of gross income. Groves thereupon reported the case to the Intelligence Division of the Internal Revenue Service.
Special Agent Jennings of the Intelligence Division next commenced a joint investigation with Groves. Jennings first introduced himself to petitioner, gave her Miranda warnings as required by IRS directive, and then issued the summons to Shaffer after the latter refused to let him see, remove, or microfilm petitioner's records. When Jennings arrived at Shaffer's office on September 2, 1969, the return day of the summons, to view the records, he found that Shaffer, at petitioner's request, had delivered the documents to petitioner's attorney. Jennings thereupon petitioned the District Court for enforcement of the summons, and petitioner intervened, asserting that the ownership of the records warranted a Fifth Amendment privilege to bar their production.
Both the District Court and the Court of Appeals for the Fourth Circuit addressed the privilege claim. The Supreme Court granted certiorari, 405 U. S. 1038.
The ingredient of personal compulsion against an accused is lacking because the summons and the order of the District Court enforcing it are directed against the accountant.21 He, not the taxpayer, is the only one compelled to do anything.22 And the accountant makes no claim that he may tend to be incriminated by the production.23 Inquisitorial pressure or coercion against a potentially accused person, compelling her, against her will, to utter self-condemning words or produce incriminating documents is absent.24
In the present case, no shadow of testimonial compulsion upon or enforced communication by the accused is involved.25 The criterion for Fifth Amendment immunity remains not the ownership of property but the physical or moral compulsion exerted.26 We hold today that no Fourth or Fifth Amendment claim can prevail where, as in this case, there exists no legitimate expectation of privacy and no semblance of governmental compulsion against the person of the accused.27
The taxpayer may not invoke her Fifth Amendment privilege to prevent the production of the records.28
Related opinions on this issue
Justice Brennan joins the opinion of the Court on the understanding that it does not establish a per se rule defeating a claim of Fifth Amendment privilege whenever the documents in question are not in the possession of the person claiming the privilege.29 In his view, the privilege is available to one who turns records over to a third person for custodial safekeeping rather than disclosure of the information.30 The privilege cannot extend, however, to the protection of a taxpayer's records conveyed to a retained accountant for use in preparation of an income tax return, where the accountant is himself obligated to prepare a complete and lawful return.31
It is clear on the facts of this case that the taxpayer has voluntarily removed these records from that private enclave where she may lead a private life.32 For that reason he would affirm the judgment below.33
Justice Douglas dissents, arguing that the privilege against self-incrimination was available to the petitioner even though she did not have possession of the documents and was not herself subject to compulsory process.34 He contends that the decision sanctions another tool of governmental invasion of private lives.35 He argues that the majority overlooks the fiduciary nature of the accountant-client relationship.36
The accountant bore responsibilities not to use the records for any purpose other than completing the returns.37 Thus the petitioner did not commit them to the public domain.38 He further notes that the decision penalizes taxpayers who must seek professional assistance due to the complexity of tax laws, attaching a penalty to the exercise of the privilege.39
Justice Marshall dissents, arguing that the Court failed to articulate a clear constitutional basis and appeared to adopt a bright-line rule based on possession alone that he could not accept.40 He proposes a multi-factor test to determine whether the author of documents retained a privacy interest, considering the nature of the evidence, the ordinary operations of the recipient, the purposes of the transfer, and the steps taken to insure privacy.41 Because the lower courts applied a rigid possession test, he would vacate and remand for application of these criteria rather than affirm enforcement of the summons.42
Whether the taxpayer may assert a Fourth Amendment claim to bar enforcement of the summons and production of the records?43
The Fourth Amendment protects against unreasonable searches and seizures.44 A taxpayer who voluntarily delivers records to an independent accountant for the preparation of income tax returns has no legitimate expectation of privacy in those records that would support a Fourth Amendment claim when the taxpayer knows that much of the information must be disclosed on the return.
No. Yet there can be little expectation of privacy where records are handed to an accountant, knowing that mandatory disclosure of much of the information therein is required in an income tax return. No confidential accountant-client privilege exists under federal law.45 What information is not disclosed is largely in the accountant's discretion, not petitioner's.46 The accountant himself risks criminal prosecution if he willfully assists in the preparation of a false return, so his own need for self-protection would often require the right to disclose the information given him.47
Petitioner cannot reasonably claim an expectation of protected privacy or confidentiality for Fourth Amendment purposes.48
The taxpayer may not assert a Fourth Amendment claim to bar enforcement of the summons.49