Saturday, May 18, 2013

Second Denial of Petition for Certiorari in Foreign Bank Account Required Records Case (5/18/13)

On May 13, 2013, the Supreme Court  denied certiorari in In re Special February 2011-1 Grand Jury Subpoena dated September 12, 2011, T.W. v. United States, 691 F.3d 903 (7th Cir. 2012).  See Supreme Court Docket Entries, here.  The context was a grand jury subpoena for the records that the Bank Secrecy Act "requires" the owner of an offshore account to maintain.  There has been an earlier denial of certiorari in In re M.H., 648 F.3d 1067, 1079 (9th Cir. 2011), cert. den. ___ U.S. ___ (2012), but taxpayers' and practitioners' hopes were up on this second petition because of the quality of the presentation in Paul Clement's petition and reply brief in chronicling the shifting Fifth Amendment jurisprudence after the required records doctrine was established and, I think, forcefully arguing that Supreme Court guidance is necessary.  See Petition for Certiorari and Briefs on the Required Records Case Presently Before the Court on Petition (5/7/13), here.

I have just revised the current draft of my Federal Tax Crimes book as follows:  "The two denials of petitions for certiorari would indicate that there is little likelihood of Supreme Court review unless a split occurs in the Circuits, which one can infer from the consistent Circuit holdings is unlikely."

Although unlikely, I do think a Circuit split could occur.  I think a good argument can be made -- and was made in Paul Clement's petition and reply brief -- that the developments in Fifth Amendment jurisprudence since the Supreme Court's last consideration of the required records doctrine could be read as inconsistent with the required records doctrine.  Hence, since all the Supreme Court did was deny certiorari, the Supreme Court has yet to speak on the issue of whether the developments in Fifth Amendment jurisprudence undermine a full bore application of the required records doctrine.  Critical mass in the Circuits appears to hold that the required records doctrine survives the broader Fifth Amendment conceptual shift, but that would not foreclose some other Circuit from holding that the required records doctrine does not survive, at least in its full bore application.  I don't hold out a lot of hope for that, but I would like to see some discussion and reconciliation of the developments in Fifth Amendment jurisprudence to the required records doctrine.  For now, the best discussion of that is in Paul Clement's reply brief on the T.W. petition for ceriorari.

For All required records discussions on this blog, click here.

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