Donald John Rechtzigel v. Comm'r of Internal Revenue, 703 F.2d 1063 (8th Cir. 1983). · Go Syfert
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Donald John Rechtzigel v. Comm'r of Internal Revenue, 703 F.2d 1063 (8th Cir. 1983). Cases Citing This Book View Copy Cite
127 citation events (10 in the last 25 years) across 7 distinct courts.
Strongest positive: Claude Douge and Jacqueline Douge v. Commissioner of Internal Revenue (ca2, 1990-03-26)
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Statutes interpreted (leading-cases list)
#9 26 U.S.C. § 7454 cited 1× in this case · 62 total citations of statute #7 26 U.S.C. § 6654 cited 1× in this case · 225 total citations of statute
Top citers, strongest first. 22 distinct citers. How cited ↗
discussed Cited as authority (rule) Claude Douge and Jacqueline Douge v. Commissioner of Internal Revenue
2d Cir. · 1990 · confidence medium
See Smith, 91 T.C. at 1052 (taxpayer failed to appear at trial); Marshall v. Commissioner, 85 T.C. 267, 268-70 (1985) (taxpayer failed to respond to request for admissions and did not appear at trial); Rechtzigel v. Commissioner, 79 T.C. 132, 135 (1982) (petitioner refused to comply with court order compelling him to produce documents despite adverse ruling on an asserted Fifth Amendment privilege), aff'd, 703 F.2d 1063, 1064 (8th Cir.1983) (per curiam); Doncaster v. Commissioner, 77 T.C. 334, 336 (1981) (petitioner failed to appear).
cited Cited as authority (rule) Thomas G. Baskin v. United States
8th Cir. · 1984 · confidence medium
Rechtzigel v. Commissioner, 703 F.2d 1063, 1064 (8th Cir.1983) (per curiam).
discussed Cited as authority (rule) Clarence W. Steinbrecher and Jeannette D. Steinbrecher v. Commissioner of Internal Revenue (2×) also: Cited "see, e.g."
5th Cir. · 1983 · confidence medium
Rechtzigel v. Commissioner, 703 F.2d 1063,1063 (8th Cir.1983) (per curiam); Baker, 647 F.2d at 917 .
cited Cited "see" Ballard v. Comm'r
Tax Ct. · 2017 · signal: see · confidence high
See Rechtzigel v. Commissioner , 79 T.C. 132 , 141 (1982) , aff'd per curiam , 703 F.2d 1063 (8th Cir. 1983) ; Doncaster v. Commissioner , 77 T.C. 334 (1981) ; see also Console v. Commissioner , T.C.
discussed Cited "see" Reedy v. Comm'r (2×)
Tax Ct. · 2008 · signal: see · confidence high
See Rechtzigel v. Commissioner , 79 T.C. 132 (1982) , affd. per curiam on another ground 703 F.2d 1063 (8th Cir. 1983) .
discussed Cited "see" Hillig v. Commissioner (2×)
Tax Ct. · 1991 · signal: see · confidence high
See Rechtzigel v. Commissioner , 79 T.C. 132 , 133 (1982) , affd. 703 F.2d 1063 (8th Cir. 1983) .
discussed Cited "see" Guillory v. Commissioner
Tax Ct. · 1986 · signal: see · confidence high
See Rechtzigel v. Commissioner, 79 T.C. 132 , 138-139 (1982) , affd. per curiam 703 F.2d 1063 (8th Cir. 1983) . 6 *332 Petitioners also indicated their fraudulent intent by submitting Forms 1040X falsely claiming that their income and tax liability were zero and seeking refunds of the tax withheld.
discussed Cited "see" Millican v. Commissioner
Tax Ct. · 1986 · signal: see · confidence high
"If the threat is remote, unlikely, or speculative, the privilege does not apply, and while the claimant need not incriminate himself in order to invoke the privilege, if the circumstances appear to be innocuous, he must make some 'positive disclosure' indicating where the danger lies." McCoy v. Commissioner, 696 F.2d 1234 , 1236 (9th Cir. 1983) , affg. 76 T.C. 1027 (1981) ; see Rechtzigel v. Commissioner, 79 T.C. 132 (1982) , *480 affd. per curiam 703 F.2d 1063 (8th Cir. 1983) ; Ryan v. Commissioner, 67 T.C. 212 , 217 (1976) , affd. 568 F.2d 531 , 539 (7th Cir. 1977) .
cited Cited "see" Lutz v. Commissioner
Tax Ct. · 1986 · signal: see · confidence high
See Rechtzigel v. Commissioner, 79 T.C. 132 , 136-139 (1982) , affd. per curiam 703 F.2d 1063 (8th Cir. 1983) .
discussed Cited "see" Johnson v. Commissioner
Tax Ct. · 1985 · signal: see · confidence high
See, Rechtzigel v. Commissioner, 703 F.2d 1063 (8th Cir. 1983) , affg. 79 T.C. 132 (1982) ; McCoy v. Commissioner, 696 F.2d 1234 (9th Cir. 1983) , affg. 76 T.C. 1027 (1981) ; Richardson v. Commissioner, 72 T.C. 818 (1979) .
cited Cited "see" Swindler v. Commissioner
Tax Ct. · 1984 · signal: see · confidence high
See Rechtzigel v. Commissioner, 79 T.C. 132 , 136 (1982) , affd. per curiam 703 F.2d 1063 (8th Cir. 1983) .
cited Cited "see" Drozda v. Comm'r
Tax Ct. · 1984 · signal: see · confidence high
See Rechtzigel v. Commissioner, 79 T.C. 132 , 136 (1982) , affd. 703 F.2d 1063 ↩ (8th Cir. 1983) . 12.
cited Cited "see" Dick H. Family Estate v. Comm'r
unknown court · 1984 · signal: see · confidence high
See Rechtzigel v. Commissioner, 79 T.C. 132 , 136-139 (1982) , affd. per curiam 703 F.2d 1063 (8th Cir. 1983) ; Roberts v. Commissioner, 62 T.C. 834 , 838 ↩ (1974) .
discussed Cited "see" Gillespie v. Commissioner
Tax Ct. · 1983 · signal: see · confidence high
See Rechtzigel v. Commissioner, 79 T.C. 132 (1982) , *112 affd. per curiam 703 F.2d 1063 (8th Cir. 1983) ; Eisele v. Commissioner, supra ; McCoy v. Commissioner, supra ; 3 see also Edwards v. Commissioner, 680 F.2d 1268 (9th Cir. 1982) , affg. per curiam an unpublished order of this Court.
cited Cited "see" George W. Lukovsky and Elizabeth L. Lukovsky v. Commissioner of Revenue
8th Cir. · 1983 · signal: see · confidence high
See Rechtzigel v. C.I.R., 703 F.2d 1063, 1064 (8th Cir.1983).
cited Cited "see" Silver
unknown court · Joseph Robert\"" · signal: see · confidence high
See Rechtzigel v. Commissioner , 79 T.C. 132 , 143 (1982) , affd. per curiam on another ground 703 F.2d 1063 (8th Cir. 1983) . 2.
discussed Cited "see" Barmes (2×) also: Cited "see, e.g."
unknown court · Carolyn P.\"" · signal: see · confidence high
See id. at sec. 22-4.1-2-2(1) ↩ . 29.
cited Cited "see, e.g." United States v. Fletchall
N.D. Iowa · 1997 · signal: see also · confidence low
See also Rechtzigel v. Commissioner, 703 F.2d 1063 , 1064 n. 2 (8th Cir.1983) (per curiam).
cited Cited "see, e.g." Gallentine v. Commissioner
Tax Ct. · 1992 · signal: see, e.g. · confidence low
See, e.g., Rechtzigel v. Commissioner , 703 F.2d 1063 (8th Cir. 1983) , affg. 79 T.C. 132 (1982) ; United States v. Neff , 615 F.2d 1235 (9th Cir. 1980) .
discussed Cited "see, e.g." Stephen B. Scallen and Chacke Y. Scallen v. Commissioner of Internal Revenue
8th Cir. · 1989 · signal: see also · confidence low
The burden of proving fraud is upon the Commissioner who must prove it by clear and convincing evidence. § 7454(a); Tax Court Rule 142(b); see also Rechtzigel v. Commissioner, 703 F.2d 1063 , 1064 n. 2 (8th Cir.1983) (per curiam); cf. Lessmann v. Commissioner, 327 F.2d 990, 993 (8th Cir.1964) (decided under Int.Rev.Code of 1939, § 1112); Schroeder v. Commissioner, 291 F.2d 649, 653 (8th Cir.1961) (same), cert. denied, 368 U.S. 985 (1962).
discussed Cited "see, e.g." Kotmair v. Commissioner (2×)
Tax Ct. · 1986 · signal: compare · confidence low
Compare Rechtzigel v. Commissioner , 79 T.C. 132 (1982) , affd. 703 F.2d 1063 (8th Cir. 1983) ; Marcus v. Commissioner , 70 T.C. 562 (1978) , affd. 621 F.2d 439 (5th Cir. 1980) (fraud established through facts deemed admitted pursuant to sanctions under Rule 104(c); Doncaster v. Commissioner , 77 T.C. 334 (1981) (fraud allegations deemed admitted under Rule 37(c); Mann v. Commissioner , T.C.
discussed Cited "see, e.g." Dusha v. Commissioner (2×)
unknown court · 1984 · signal: see also · confidence low
See also Rechtzigel v. Commissioner, 703 F.2d 1063 (8th.
Retrieving the full opinion text from the archive…
Donald John RECHTZIGEL, Appellant,
v.
COMMISSIONER OF INTERNAL REVENUE, Appellee
82-2054.
Court of Appeals for the Eighth Circuit.
Apr 6, 1983.
703 F.2d 1063
1983 U.S. App. LEXIS 29058
Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Robert T. Duffy, Melvin E. Clark, Jr., Attys., Tax Div., Dept, of Justice, Washington, D.C., for appellee., Donald Rechtzigel, pro se.
Lay, Henley, Fagg.
Cited by 112 opinions  |  Published
PER CURIAM.

Donald John Rechtzigel (hereinafter “taxpayer”) appeals an adverse decision of the Tax Court. Taxpayer had filed a petition in the Tax Court contesting the determination by the Commissioner of Internal Revenue (hereinafter “Commissioner”) of deficiencies and additions to tax for the years 1974-1977 in excess of $36,000.00. The deficiencies amounted to $23,454.47. The additions included a 50% addition to tax of $11,727.24 for fraud under 26 U.S.C. § 6653(b) and additions of $870.87 for failure to pay estimated tax under 26 U.S.C. § 6654. The Tax Court, upon the Commissioner’s request, entered an order that taxpayer produce all records and data in his possession or control reflecting his taxable income for the years 1974-1977. As sanctions for taxpayer’s repeated refusals to comply with the discovery order, [1] 23the Tax Court 79 T.C. 132, dismissed taxpayer’s petition and granted a default judgment in favor of the Commissioner on the fraud addition. We affirm.

The sole issue raised by taxpayer on this appeal is whether the Tax Court erred in rejecting his assertion of his fifth amendment privilege against self-incrimination as a valid reason for refusing to comply with the discovery order.

Unless the danger of self-incrimination is readily apparent, the burden of proving that such a danger exists rests with the claimant. Hoffman v. United States, [*1064] 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951); Baker v. Limber, 647 F.2d 912, 917 (9th Cir.1981); United States v. Mainik, 489 F.2d 682, 686 (5th Cir.), cert. denied, 419 U.S. 826, 95 S.Ct. 44, 42 L.Ed.2d 50 (1974); United States v. Jones, 538 F.2d 225, 226 (8th Cir.1976), cert. denied, 429 U.S. 1040, 97 S.Ct. 738, 50 L.Ed.2d 752 (1977). Cf. Lukovsky v. CIR, 692 F.2d 527 (8th Cir.1982). Furthermore, a claimant of the fifth amendment privilege cannot be the sole determinor of whether particular material is incriminating. The trial court must make the final determination. Hoffman v. United States, supra.

Here, the taxpayer alleged a fear of criminal prosecution on the basis of the fact that he had previously been investigated as to the years in question by two agents of the Criminal Investigation Division of the Internal Revenue Service. Notwithstanding the Commissioner’s representation that the Internal Revenue Service had made a decision against criminal prosecution, and that no criminal prosecution was pending or threatened, taxpayer invoked his expressed fear as a blanket justification for refusal to produce any material whatsoever.

The Tax Court held that, even assuming taxpayer had established a basis for his fear of the possibility of future prosecution, the danger of self-incrimination was not readily apparent as to all the material encompassed in the Commissioner’s request for production, and that taxpayer was required to make specific fifth amendment objections as to the various records he declined to produce. Taxpayer refused to do so, and the Tax Court thereupon correctly rejected his claim of fifth amendment privilege.

We therefore affirm the judgment of the Tax Court. [2]

1

. The sanctions were imposed pursuant to Rule 104(c) of the Tax Court Rules of Practice and Procedure.

2

. We note again that the sole issue raised by taxpayer on this appeal was the validity of his assertion of his fifth amendment privilege. We are troubled by the Tax Court’s entry of default judgment on the additions to tax for fraud. The burden of proof is on the Commissioner to show that a taxpayer is guilty of fraud with the intent to evade tax. 26 U.S.C. § 7454. The courts have construed § 7454 as requiring proof of fraud by clear and convincing evidence. See, e.g., Lessmann v. Commissioner, 327 F.2d 990, 993 (8th Cir. 1964); Foster v. Commissioner, 487 F.2d 902, 903 (6th Cir. 1973). Here the Commissioner introduced no evidence or sworn statement, but relied solely on the allegations of his pleadings, which were deemed admitted on taxpayer’s default. We are not prepared on the basis of these proceedings to express a general approval of this procedure. However, taxpayer did not raise the issue, and on the facts of this case we do not find plain error.