entity doctrine and the foregone conclusion documents they will have to do with the protection of the th amendment with respect to documents this case was here before this court a couple of years ago just lawyer i think entity doctrine because the issue here is whether or not a traditional trust common law trust is a collective entity you know from supreme court authority that a collective entity such as a corporation or a business personal privilege but the corporation itself the entity doesn't have a privilege this a case it's a matter of st impression this court whether a traditional trust is a collective entity now we said in our brief the america thirty the supreme court in america all made up distinction between an entity that just has trust in its name which is really a business operation and a traditional trust the court has said and new york law also says that a traditional trust is not an entity it's relationship between a trustee and the beneficiaries and the said lord grants or here and the two of a cases i should say that are cited a entity but if i do cherie relationship between the two people so i would submit to the court that the that the court and the law should favor protecting th amendment privilege and shouldn't try to narrow th amendment  and so so that's a that's an important issue that affects quite a number of the request the document requests that that i hear but i want to move on if i may to another a trust trust for purposes of the collective and the doctrine or any other doctrine but what is it about this trust that you could point to that would  by one woman gold kipper smith for the benefit of her grandson david marcello friedman and her son in law natalia was the trustee and the  an infant but so was a trust set up by this woman and by the way the documents in the record shows that it was a new york trust governed by new york law established by a prominent new york law firm  point and a half a dozen of these requests where the government says we want certain documents relating to that trust and any other trust of which you are a beneficiary or a trustee that's the equivalent of asking  friend and please give us the names of any of the trust of which you are trust your beneficiary that's pure testimony that's not just document requests give us the document that show that you are a beneficiary trust me it is testimony that's so even if it's a collective entity you're asking someone to provide testimony from his own lips to make the main issues the stephen marcello yes your honor and is your point that this trust because it's  relationship and so there's no reason to try to impose a collective entity exception on such a document but beyond that some of the document requests referred to in our brief nd request  other trusts to hide money and we don't know what they are so he should tell us oh but he shouldn't give us the name he should just give us the documents that show the name well there's no difference it's no testimony by conduct just because you producing a document doesn't mean it's not conduct it's testimony by conduct you timers expired you resent you for rebuttal think you will hear from the government please the court my name is tallia kramer i'm an assistant united states attorney and i represent the united states in this matter and to the issue that was just being discussed about whether what has been referred to as a traditional trust we could also call it a common law trust is a collective entity the key principle under supreme court case law is whether an entity has an institutional identity that is separate from just the personal identity of its individual members it does not need to be a formal legal entity it does not need to be recognized under the law as age or ridicule and to be for any specific or for all purposes the nd circuit has previously held that a partnership of individuals before they formed a formal partnership when they were just conducting business together but hadn't formalized their status in any way counted as a collective entity and what courts in all of these cases have done and what courts in the other circuits to have considered the trust question have done is looked for indicia of whether these people are holding themselves out as something separate from just an individual person's private  and those features are present in a common law trust a common law trust as described for example in the restatement necessarily has three elements not just a trustee it is not just an alter ego for the trustee but a trustee beneficiaries and trust property the trust agreement lays out various duties that the trustee is bound by their restatement and common law lay out certain duties that the trustee has including for example to deal with the property for the interest of the beneficiaries the beneficiaries have certain rights in the records of the trust a right to access of the trust records these are all features that the supreme the other trusts for which the government is seeking that  yes one of these only trusts so the government knows for sure that there are three trusts which with wished mr friedman is associated one is the david marcella trust he is one of he is one of two trustees of that trust that has to trustees the nd is that the same trust agreement that created that trust creates a nd trust we don't know what the name of that trust is but we have a trust agreement creating it and then over the course of this litigation mr freeman voluntarily produced a trust agreement for a rd trust the david m friedman era vocal trust so there are at least three trusts that the government knows of by name as for the unidentified trusts if we accept that a trust as a collective entity the supreme court has held a very clearly that a person who holds a collective entities records in a representative capacity simply has no th amendment privilege and cannot assert a th amendment privilege in response to a request for records we know about these of the trust this question of who has the burden of showing whether mr friedman is acting in a representative capacity is an issue that mr friedman has raised for the st time on appeal so it was not before the district court in the district court did not decide it however let me give you an analogy so when the government issues a subpoena to a person for example for e mail communications it is on that person in the st instance to go through those documents and determine whether they think based on existing law any of those communications are protected by the attorney client privilege they can make that determination produce the documents that are not privileged and then assert a privilege over those that they determine are legitimately privileged the burden however is that person as the proponent of the privilege this is this is clear in the law the proponent of the privilege has the burden of asserting the privilege so in this case if mr friedman has documents at home that he knows he holds as a trustee for a trust if we agree that a trust as a collective entity or for example as an officer for a corporation he simply has no th amendment privilege that he can assert over those documents and he needs to produce them or deal with any of these unknown trus the district court did hold that he needed to produce all trussed related records in response to the document requests that seek trust records and some of the document your quest for which a number of the document requests that relate to trust that's correct that's correct we don't know what they are but to the extent he sees me or if they even exist that's correct the government doesn't know that but there is not a problem here with him with him providing testimony because if he holds these documents in a representative capacity for a collective entity he cannot resist producing them under the th amendment even if there are testimonial aspects to the act of production and that is what  some record of the question that was before the district court the broader question was is what's been called a traditional trust or a common law trust a collective entity and the district court held relying in part on the four circuits that have answered in the affirmative with respect to the kinds of trusts before them that they are and therefore require the respondent to produced all trussed related documents sought by the document requests again this the focus on whether the government knew or didn't know whether mr friedman held those other trust documents in a representative capacity was not raised as an objection by mr friedman below so it wasn't quite as clear that question wasn't clearly crystallizes an issue with the district  t argument now that he actually forfeited any objection to the unknown trusts we do think that he forfeited the argument that it is the government's burden to st show what his relationship is to these unknown trusts before it can get the documents under the collective entity doctrine however beyond that we also think that that is dictated by the court's holding in braz while what the district court did reach and hold is that any trust that has the features of a common law trust is a collective entity for th amendment purposes and the district court went on to hold that mr friedman must produce all trussed related documents responsive to the document requested seat trust documents of the district mr friedman could say i do not hold any other trust related documents in a representative capacity but he has not done that in this case it he could make that simple statement to the question he has your argument is that h forfeited that entire argument that is not i'm sorry let me clarify that is not my position my position is that he has forfeit argument that the government has the burden of affirmatively proving his relationship to a collective entity before the government can get collective entity doc documents from him however what we think is the appropriate way for this to go is because the burden is on him the burden is on him to respond to the government's document requests and instead of saying i need the government to st prove my relationship to all these entities  what we're asking the court to affirm is the ruling that to the extent mr friedman holds documents responsive to the summons as a representative for a collective entity which includes what he is calling traditional trusts he is obligated to produce them there will be some process that he goes through sifting through his documents and figuring out how to apply that all in the time when production was due to say i don't hold them i don't hold any of the trust  forstmann but he didn't do that and i might engender generate further litigation but at least that would be a response that's right and at this point he has refused to respond all together i will also note that with respect to the corporate records  where he has also advanced this argument that the government st has to prove that he holds any corporate records in a representative capacity what mr friedman actually did represent to the district court below is that he does not hold any records responsive to document requests three which seeks corporate records in an individual capacity he said that below so to the extent he does have responsive records for document requests three he holds them in a representative capacity and he i want to just foregone conclusion for the reasons your honor just said however the proposition that the government has presented this court is radical is no absolute there's absolutely no authority for it anywhere that if the government says produce all records relating to collective entity which you hold even if we don't know what they are you have to produce them absolutely no authority to that every case that we've seen and involving collect entity in most of the willing to corporations the government has shown in its initial presentation that respondent was the custodian of collect the entity that entity that corporations from and in connection with his personal personally and all of them relate to his personal income tax liability for the year two thousand and eight no reference to any corporation involvement in this proceeding or in this inquiry they're not looking for any corporate records if you provide that answer to the government  made that we didn't forfeit this argument we made it very clearly that that there's no basis and there isn't a single case where the government hasn't had to show that the respondent was the custodian of records that is your client to put up or shut up that is to make the argument that you are not the custodian and it's actually a person it's a personal trust it's a personal whatever and therefore you're not actually in a representative government is saying if you are a custodian of collective and any records of corporations or records any corporation on the planet you have to show us that you're not so now the response that st of all has to come out of his mouth actually testify in response to something your argument the anybody who sat up in a trust off in the corner over there which doesn't have to keep records but becomes an enforceable  agreement or relationship one of the laws of the state of new york which has no out outward facing appearance that you can just hide your taxpayer can just hide well let's not characterize every trust that is hiding say why you are asserting the privilege and if the if you are certain the privilege on the grounds that you are not the custodian and that it would require you as a personal matter to provide in effect testimony testimony going to provide an answer that's not that's not a separate th amendment problem well the problem here is that you receive a summons in connection with your personal tax liability issue to you personally not as custodian of records the government can ask you to please tell us the names of all corporate entities of which you are a custodian of records the government has to make an initial showing every single case that you'll see in a record with the government has shown that the person as a predicate to enforcing the collective and that he summons or subpoena is that the respondent was storing of records every case you won't find a single case that it's different the government's got this radical idea that if it's if you're a custodian a couple records you have to tell us what they are and if we give you the name of some company we don't have to show anything there's no authority of the declaration excuse me of its revenue agent that they think that these companies are used to hide money laundering money whatever they're looking for is criminal activity unreported income and so why should my client have to answer any questions that would help the government provide information in the link at the chain that leads to criminal prosecution or roswell seems to suggest that i don't think 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