It´s called: ¨invoking the 5th¨ but nothing in the US Constitution provides this Right. The Constitutional protection against self-incrimination doesn´t allow you to ¨remain silent,¨ it means that nothing you say cannot be used against you once you invoke the 5th Amendment. In the early days of the Republic, you could be questioned, even coerced into giving testimony or evidence, but it could not be used against you in a court or to defame you.
It´s called: ¨invoking the 5th¨ but nothing in the US Constitution provides this Right. The Constitutional protection against self-incrimination doesn´t allow you to ¨remain silent,¨ it means that nothing you say cannot be used against you once you invoke the 5th Amendment. In the early days of the Republic, you could be questioned, even coerced into giving testimony or evidence, but it could not be used against you in a court or to defame you.
In Federal Tax Law, Taxpayers have a Right to Representation (IRC §7521). ¨Representation¨ is one person acting for another so as to have all the rights and obligations of the person being represented – sometimes referred to as being “attorney-in-fact.”
Absent a Summons, the IRS cannot compel a Taxpayer to appear at any proceedings. If during any IRS interview, the Taxpayer asks to consult with a Representative, IRS must stop the proceeding and reschedule (just like in the movies, when the detainee says ¨I want a lawyer¨).
If a Summons is issued, you MUST appear, but you may not be compelled to speak if represented. You have the Right to Remain Silent provided your REPRESENTATIVE, holding an executed Form 2848 Power of Attorney, is not also silent.
Not just anybody can ¨represent¨ you. Only Legacy Circular 230 (“enrolled”) Practitioners – Attorney’s, CPAs, and Enrolled Agents – are authorized to do all of the following:
1. Communicate with the IRS for a Taxpayer;
2. Appear for and in place of a Taxpayer before the IRS, Appeals, and Collections;
3. Execute documents for a Taxpayer; and
4. Prepare and file Taxpayer’s documents with the IRS.
Other (¨unenrolled¨) Tax Preparers can do only Step 1 above if they actually prepared the tax return being examined.
