United States v. Rylander, 460 U.S. 752 (1983)

United States v. Rylander

No. 81-1120

Argued January 18, 1983
Decided April 19, 1983
460 U.S. 752

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

Syllabus

The Internal Revenue Service (IRS) summoned respondent Rylander (respondent) to appear before an IRS agent and to produce for examination, and testify with respect to, records of two corporations of which respondent was president. When respondent failed to comply with the summons, the District Court enforced it and ordered him to produce the corporate records. Subsequently, after a hearing, the District Court held respondent in civil contempt for failure to comply with the court’s enforcement order, finding that he had failed to introduce any evidence in support of his claim that he did not possess the records. The Court of Appeals reversed, holding that respondent’s out-of-court declaration that he did not possess the documents, together with his invocation of the privilege against self-incrimination under the Fifth Amendment, required the Government to shoulder the burden of producing evidence that respondent was able to produce the records in question, and that, notwithstanding the issuance of the enforcement order, respondent was free to relitigate the question of his possession or control of the records in the contempt proceeding.

Held: The Court of Appeals was incorrect both in its view of the relationship between the enforcement proceeding and the contempt proceeding and in its view of the effect of respondent’s invocation of his Fifth Amendment privilege on the burden of production at the contempt hearing. Pp. 756-762.

(a) Because a proceeding to enforce an IRS summons is an adversary proceeding in which the defendant may contest the summons on any appropriate ground, and because lack of possession or control of records is such a ground, the issue may not be raised for the first time in a contempt proceeding. In the latter proceeding, the defendant may assert a present inability to comply with the enforcement order, but in raising this defense, he has the burden of production. Thus, while respondent in the contempt hearing could not attack the enforcement order on the ground that he lacked possession or control of the records at the time the order was issued, he could defend the contempt charge on the ground that he was then unable to comply because he lacked possession or control. Pp. 756-757.

(b) While assertion of the Fifth Amendment privilege may be a valid ground upon which a witness such as respondent declines to answer questions, it is not a substitute for evidence that would assist in meeting a burden of production. Curcio v. United States, 354 U.S. 118, distinguished. The Court of Appeals’ view would convert the privilege from the shield against compulsory self-incrimination that it was intended to be into a sword whereby a claimant asserting the privilege would be freed from adducing proof in support of a burden that would otherwise have been his. Pp. 757-761.

656 F.2d 1313, reversed.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, STEVENS, and O’CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, post, p. 762.