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When returns lector.
before the day on which the taxes accrue, to make a list or return, verified by oath or affirmation, to the collector or a deputy collector of the district where located, of the articles or objects, including the amount of annual income, charged with a duty or tax, the quantity of goods, wares, and merchandise made or sold, and charged with a tax, the several rates and aggregate amount, according to the forms and regulations to be prescribed by the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, for which such person, partnership, firm, association, or corporation is liable: Provided, That if any person
liable to pay any duty or tax, or owning, posby eleputy cold sessing, or having the care or management of
property, goods, wares, and merchandise, articles or objects liable to pay any duty, tax, or license, shall fail to make and exhibit a list or return required by law, but shall consent to disclose the particulars of any and all the property, goods, wares, and merchandise, articles and objects liable to pay any duty or tax, or any business or occupation liable to pay any tax, as aforesaid, then, and in that case, it shall be the duty of the collector or deputy collector to make such list or return, which, being distinctly read, consented to, and signed and verified by oath or affirmation by the person so owning, possessing, or having the care and management as aforesaid, may be received as the list of such person : Provided further, That in case no annual list or return has been rendered by such person to the col
lector or deputy collector as required by law,
and the person shall be absent from his or her residence or place of business at the time the collector or a deputy collector shall call for the annual list or return, it shall be the duty of such collector or
Proceeding in case of al sence.
Cases of refu-
deputy collector to leave at such place of residence or business, with some one of suitable age and discretion, if such be present, otherwise to deposit in the nearest post-office a note or memorandum addressed to such person, requiring him or her to render to such collector or deputy collector the list or return required by law, within ten days from the date of such note or memorandum, verified by oath or affirmation. And if any person on being notified or required as aforesaid shall refuse or neglect to render such list or walor neglect, return within the time required as aforesaid, or whenever any person who is required to deliver a monthly or other return of objects subject to tax fails to do so at the time required, or delivers any return which, in the opinion of the collector, is false or fraudulent, or contains
undervaluation or understatement, it shall be lawful for the collector to summons to summon such person, or any other person having possession, custody, or care of books of account containing entries relating to the business of such person, or any other
appear before him and produce such books, at a time and place named in the summons, and to give testimony or answer interrogatories, under oath, respecting Collector may any objects liable to tax or the returns person within thereof. The collector may summon any person residing or found within the State in in certain cases which his district lies; and when the person States and exintended to be summoned does not reside and authority. cannot be found within such State, he may enter any collection district where such person may be found, and there make the examination herein authorized. And to this end he may there exercise all the authority
Collector's produce books and testify.
the State in which his district lies; and
may enter dis. tricts in other
which he might lawfully exercise in the district for which he was commissioned.
As to cases of refusal or neglect to make income returns, or making false income returns, see, also, Sec. 29, act August 28, 1894. As to penalties for neglect or refusal of corporation to make the return required by Sec. 35, act August 28, 1894, see Sec. 32, ibid. As to inspection of books of corporations, see Sec. 36, act August 28, 1894.
In an application for attachment for contempt, under Sec. 14, act June 30, 1864 (now Secs. 3173, 3174, 3175, 3176 R. S.), against a taxpayer for not producing books, etc., the court has power to issue an order to show cause instead of proceeding ex parte. The application of the assessor (now the collector) may be amended. The books which the assessor or collector has the right to examine are those of the person whose assessment is in question, and not those of third persons, and consequently a corporation is not bound to produce its books on an inquiry into the income of its stockholders. In re Chadwick, April, 1870, District Court Mass., 1 Lowell, 439.
Case of summons to produce books where the right to reassessment had expired. The collector had no legal authority to require the production of a person's private books and papers in such a case.
Archer's case, 9 Benedict, 427. Production of books under Sec. 3173. In re Strouse, 1 Sawyer, 605.
Summons by assessor to produce books and attachment by court for refusal. Lippmann's case, 3 Benedict, 95.
Meaning of the words “ objects charged with internal revenue tax.” Wells v. Shook, 8 Blatch. 254.
The Boyd case decides that Sec. 5 of act of June 22, 1874, is unconstitutional and void, in so far as it authorizes the compulsory production of a man's private books and papers in revenue cases which are of a quasi-criminal nature, such as actions in rem to enforce a forfeiture, or proceedings to recover a penalty. Such compulsory production is compelling him to be a witness against himself, within the meaning of the
Fifth Amendment to the Constitution, and is the equivalent of a search and seizure and an unreasonable search and seizure, within the meaning of the Fourth Amendment. Boyd v. United States, 116 U. S. 616.
Quære. Whether under the doctrine laid down in the Boyd case, the Supreme Court would sustain the compulsory production of books and papers under Sec. 3173. The proceedings before the collector may be said to be of a quasicriminal nature, as one of its objects is to enforce a penalty of 50 per cent in case of neglect to make returns, and 100 per cent in case of false returns.
See 17 Opinions Atty.-Gen. 433, in regard to this addition to the tax being a penalty, not a tax. See, also, Sec. 3179, , which imposes a punishment by fine and imprisonment for neglecting to appear, or to produce books.
It will be noted that, under Sec. 36, act of August 28, 1894, in regard to the returns of net profits by corporations, the Commissioner of Internal Revenue may request permission to inspect their books in certain cases, but, if refused, no power is given him to compel the production of the
Summons, vice of.
For act of June 22, 1874, see appendix.
SEC. 3174. Such summons shall in all cases be served by a deputy collector of the district where the person to whom it is directed may former of serbe found, by an attested copy delivered to such person in hand, or left at his last and usual place of abode, allowing such person one day for each twenty-five miles he may be required to travel, computed from the place of service to the place of examination ; and the certificate of service signed by such deputy shall be evidence of the facts it states on the hearing of an application for an attachment. When the summons requires the production of books, it shall be sufficient if such books are described with reasonable certainty
summons, proceedings on.
Sec. 3175. Whenever any person summoned under Failure to obey the two preceding sections neglects or refuses
to obey such summons, or to give testimony, or to answer interrogatories as required, the collectors may apply to the judge of the district court or to a commissioner of the circuit court of the United States for the district within which the person so summoned resides for an attachment against him as for a contempt. It shall be the duty of the judge or commissioner to hear the application, and, if satisfactory proof is made, to issue an attachment, directed to some proper officer, for the arrest of such person, upon
his being brought before him to proceed to a hearing of the case; and upon such hearing the judge or commissioner shall have power to make such order as he shall deem proper not inconsistent with existing laws for the punishment of contempts, to enforce obedience to the requirements of the summons, and to punish such person for his default or disobedience.
See Sec. 3179 for penalty imposed for failure to obey summons.
See note to Sec. 3173.
SEC. 3176, as amended by Sec. 34, act of August 28, 1894. When collector When any person, corporation, company, or turns for tax association refuses or neglects to render any
return or list required by law, or renders a false or fraudulent return or list, the collector or any deputy collector shall make, according to the best information which he can obtain, including that derived from the evidence elicited by the examination of the collector, and on his own view and information, such list or return, according to the form prescribed, of the income, property, and objects liable to tax owned