and against their assertion of their fifth amendment rights to be free from making statements that may be used them in a criminal proceeding the relevant facts are these the summons at issue was issued by a revenue officer who is assigned to collecting outstanding tax liabilities owed by mr and mrs pate the revenue officer has on the record admitted that he is seeking to establish alter ego nominee liens and what that means is the i can then file a lien against another person or another prop another entity and then go after that entity or that person to collect the taxes underline those liens is an argument that must be made by the revenue officer that the taxpayer has intentionally put assets into those alter egos or nominees in order to evade collection and that's where the fear of self incrimination comes in in this case because if you look at the statute twenty six u s c seventy two zero three under the internal revenue code that statute exists it's a criminal statute which provides that by by willfully failing to pay over taxes that are owed to the united states one can be criminally prosecuted and if you follow the logic of a stablish in alter ego anomaly excuse me an alter ego nominee leans and the facts that underlie that analysis there is certainly a a a link in the causal chain of being able to establish that someone has committed a crime under seventy two or three and i think the errors that were committed by the lower court in their decision were that number one i think the court put too much weight on the stage of the proceeding in the report recommendation issued by the magistrate judge which is ultimately adopted by the district incrimination the word can there i think is critical because that says to me that in no circumstances can anyone at that stage of the proceedings assert for the member right and those rights be upheld which i think is totally erroneous as a matter of law the stage of the proceedings is not what's relevant what's relevant is whether or not the taxpayer has a real an appreciable fear of self incrimination and i think the well it's interesting your honor the government makes a big deal about that what i find interesting and it's a little perplexing and somewhat disingenuous not to use too many adjectives there but in their papers in the lower court they try to say that my clients waive their fifth amendment rights by assert by submitting a four thirty three a which is a collection information statement back in two thousand and thirteen so  you can't selectively assert the fifth amendment right so you know for instance lois lerner when she testified before congress there was a whole big hoopla over whether or not she waived the fifth because she made an opening statement there was talk of you know holding her in criminal contempt and so breeze i mean my clients they're natives of india they've immigrated here they're u s citizens not a great command of the english language in that setting before revenue officer the safest approach in my view was to assert the fifth amendment throughout the proceeding my point is just if we're going to if we're going to argue about the poor woman airier questions that were you know this blanket assertion notion well i would submit that the answers that arguably wouldn't have had any sort of criminal risk were in from it was information the government already had everything else to me totally proper to assert the fifth amendment they could have furnished the causal link in the in the chain of a criminal prosecution and i think also i think it's important to no irises position here which is we have to have this testimony it's essential that we get this testimony well that's just simply not the case if you want to go get alter ego nominee leans you know there's a negative inference in a civil context by asserting the fifth memory to me that that's something i don't know what the revenue officer in this case has done since as far as his investigation or other information i think to what i consider trample someone's fifth amendment rights to be free from making statements that could be self incriminating i think with a look at it you know what are the alternatives for the i r s which is a little bit of a nuanced argument not something that's been addressed i will touch on the cases that are cited i would like this court to find the two to reverse the lower court and deny enforcement the summonses i don't think that remain ending and going on a question by question basis based on the facts in this case which i think are very unique compared to every other  opinion that exists out there especially in the circuit norwood case dealt exclusively with the taxpayer who is refusing to turn over documents we're not arguing that the refusal you know we're not saying that there's a fifth amendment right to refuse to produce documents that already exist this particular summons dealt only with testimony which is really important it's not really we're not refusing to turn over documents we're not refusing to appear the teep of the case which is relied on also a circuit dealt with a tax protester i think the justice department for as the now as text the fires that's less noble but i mean these are cases that a pretty much all of the cases i haven't found anything that's on point as far as a limited summons asking for testimony where inconsistencies with this revenue officers testimony but i think what it's clear what he clearly did not think the lower court found was that he had made an effort to go to a supervisor to have the case referred for a criminal investigation and i think certainly as an attorney of your advice and a client new experience someone who is emitted to you that when you ask is as a any good techs practitioner would my client under criminal investigation and they respond no not yet which i understand he disputes firmly believe that's what he said and then also the hostility in terms of serving him with the summons and again when we show up at the hearing serving him with another one at his house when he learns that he's going to be subpoenaed to testify to show cause here so in my view this person clearly has it out for the taxpayer and anything that might client says to him during a testimonial said could be used contorted whatever you whatever word you want to use to then seek that criminal prosecution and so from my standpoint based on all the facts all the circumstances the statements he's made it was completely legitimate for my clients to have a real and appreciable fear of self incrimination in order to assert their for the member rights and i'd like to save the time i have left for a bottle of that's all right with the court they did which is invoke the fifth amendment as to each and every question that was presented to them forty some odd question to which there were specific questions that they wish to raise the fifth amendment in regards to they should have done so presented that evidence to the district court the district court here held evidentiary hearing opposing counsel has argued a lot of facts day however the district court the magistrate judge heard live testimony trial courts are vested with the expertise in making factual credibility terminations and as we put it on our brief i see no points of clear error that they've even argued in specific factual determinations they may not like the the factual determinations that the trial court made here nine page twenty six is that any argument that they could have raised as to those forty seven questions forty nine questions to mr pate a forty seven question to ms pay they should have raised at the previous here eating that's what we relied on the olson case for which studies were a student applies in this kind of context because the government is concerned about a merry go round effect here we don't want district courts to have to deal with this over and over again that it becomes some kind of game like you said because it can't be that they go back and then the question that they've already had a chance to present argument to in evidence to before the trial court then say well we didn't argue this before but now we're going to give you a specific basis on which to start the fetter to this question and as a follow up questions our position would be that there are they could make any argument that would be temporarily new but they couldn't make the same arguments that they that the magistrate judge looked at all the testimony and that the there was no evidence presented by the other side only the government's revenue officer was the only evidence that was put forward by the pay regarding their fear of prosecution he denied making the statement that counsel an argument claimed he made so as far as these other arguments factual arguments that counsel makes today for example about the limited command of english language of he wanted doc to be a fact before this court he should have put that fact in before the district court which was the proper place to do it the district court took the time here to have a magistrate hold the other to ensure hearing and that should be respected as judge pointed out this can't be an exercise in futility it's just a merry go round effect the supreme court has held that in the stomach these summonses are not accusatory in nature they are to inquire of the tax system requires disclosure of information that's how our tax system works is voluntary disclosure of information you have to report criminally aren't income we all know all these basic things there's nothing nefarious about seeking this information to collect taxes there's no fifth amendment right against if that's the argument that temp counsel had wanted to make as to a specific question he should have made that before the district court all of the cases from the supreme court back to the fifty's say that it needs to be an individualized question and that you don't have to obviously explain your criminal activity or what is specifically is but there has to be an evident basis for the trial judge to make a decision and here the only facts we have on the record say the only thing the officer or the revenue officer boston did which is what any officer should do is look at everything in the case speak to advisors in our office in to see whether or not something should be pursued he never even went so far as to formally pursue a criminal referral at all in this case tackett tax collection having taxes collected from you is not a criminal enterprise and their reading of the statutes basically makes that were anything you could come up with debt that's definitely true there does not have to be a criminal referral and i think that's the reading of the magistrate judge's opinion that is problematic right there does not have to be a criminal referral to having a reasonable fear of prosecution we could come up today with fifty sixty hundreds of hypotheticals of why you might not want to enter these questions that may not be even in the tax context right that you could have a reason not to answer a question because it could be a causal link but that's why what the  taxpayers it here are so wrong it has to be a specific question that the only way the supreme court's analysis works in this context is to have a specific question to look at it and to give that to the trial court the trial courts are very experienced in handling these new want factual situations especially in protecting fifth amendment right they do it in grand jury situations they do it regularly that is the problem with the way this case is before this court is this blanket invocation has created a situation where we don't have that information because they already had the opportunity to do honor they have competent counsel in this court has held since the sixty's that you cannot do this and that what he could have he even said at the hearing well maybe i should have done that but at the hearing that he should have focused  here in here the well here the argument is well you had the the trial court had the hearing you had the opportunity to present any evidence you wanted as to any specific questions here's wasting district court time the summonses a routine the supreme court as the supreme court said recently cock these are routine matters that just require a very small showing of the meaning of the power factors and then we move on from there these are not these are not accusatory you can read the tax statutes willful evasion and failure to make a statement very very  absolutely we have it attached to our appendix and many of them are completely in my view innocuous maybe there is some reason that you know i'm not going to speculate or have hypotheticals about specific questions of why they would have a reason to invoke the fifth amendment because i mean a law school exam could come up with anything on those type of hypotheticals but there were forty seven and forty nine questions asked to each taxpayer they were attached in the district court if you have any further questions i'd like to answer them otherwise we would ask that the district court's decision be affirmed thank you i  was no indication that was the way that the fifth member was invoked was improper and in our objection to the report recommendation we actually suggested that the court consider allowing us to have an ex parte in camera review of our concerns if that's the direction the court was going to head and that was not addressed in the district court's adoption of the our in our so it wasn't something that respondents appellants now weren't willing to do or didn't raise it wasn't raised at the hearing because frankly it never never really came up i guess in the sense of that being an option with the court perhaps we could have suggested that but i think the court if it was interested in doing that could have taken it on its own volition to do that if it was concerned about this blanket assertion submitted was that they would argue that you can't selectively waive your fifth and i do i'm curious i think the government would come back in here and say well you answer some of these questions you assert your fifth with respect others you've waited for the minute now we're going to ask the court to have you answer everything i mean it's a real ho it wasn't a blanket invocation a blanket in the case would be i'm not showing up i'm asserting my fifth the memory i'm not going to be there heat they showed up they answered every question that's me while they respond and in the court's opinion they said the taxpayers refused to answer that's not true they answered with the invocation of the fifth amendment that's a different situation than someone who says i'm not showing up i'm not appearing i'm not producing documents and that's what some of these cases talk about when they talk about a blanket assertion there isn't to me a clearly defined  blanket assertion is not clearly defined and the cases that are out there and just a couple points if i may at the time have left in terms of the legal errors the legal error which i think we laid up pretty clearly was that the court put place this undue emphasis on the lack of a d referral under seventy six o two the code that is a statutory prohibition the i r s cannot seek enforcement of a summons the court cannot order in force of summons if there's been a criminal referral made it's really relevant to the issue of whether or not the taxpayers have a reasonable f doesn't it's not consistent with cohen in the eighth circuit which basically says that the stage of the proceeding is meaningless so those are two areas of law right there and i think a third arab walk sort of mixed with fact is overlooking seventy two three as a real threat for criminal prosecution based on what the i r s was seeking which was this alter ego nominee lean and you know prosecutors have tremendous discretion in cases they bring seventy two or three is very broad certainly a case could be made that if are facts to support alter ego nominee leans that a criminal prosecutor could bring a case under seventy two or three i don't see how that can be disputed this isn't a game this is serious taxpayers have a real threat of criminal prosecution if they're forced to give testimony about their assets and their liabilities so we would ask the court rather than go through this merry go round exercise going back to the lower court acknowledge that the real question the i r s was once answers to have to do with their assets and those do present fit to mimic concern