Unpublished Disposition, 862 F.2d 318 (9th Cir. 1988)

MEMORANDUM^** 

Appellant Thomas Diehl appeals the Tax Court's decision affirming the Commissioner's imposition of additions to tax for violations of 26 U.S.C. §§ 6651(a) and 6653(a). Finding Diehl's claim frivolous, we affirm and impose costs.

Diehl's 1981 tax return contained only his name and signature; his 1982 return contained only his name. Rather than provide financial information on the returns, Diehl asserted blanket constitutional objections, including his fifth amendment privilege against self-incrimination. The Commissioner issued notices of deficiency and additions to tax for negligent or intentional disregard of rules or regulations under 26 U.S.C. § 6653(a) and for failure to file proper tax returns under 26 U.S.C. § 6651(a), for a total liability of $27,038.25, plus interest. Diehl conceded the deficiencies but opposed the additions, repeating his fifth amendment objections at trial. The tax court denied Diehl's claim because he failed to offer evidence to support it, and held Diehl liable for the additions.

On appeal, Diehl repeats his fifth amendment grounds for refusing to provide information on his returns. Alternatively, Diehl argues the tax court erred in affirming the additions because the law is unclear as to how to assert a fifth amendment privilege on a tax return.¹  Both contentions are meritless.

"A tax return that contains no information upon which tax liability can be assessed cannot be justified under the fifth amendment unless the taxpayer shows 'substantial hazards of self-incrimination that are real and appreciable, and [has] reasonable cause to apprehend such danger.' " Boday v. United States, 759 F.2d 1472, 1474 (9th Cir. 1985) (quoting Edwards v. Commissioner, 680 F.2d 1268, 1270 (9th Cir. 1982) (per curiam)). Where, as here, the danger of self-incrimination is not readily apparent, the burden of establishing any hidden danger rests with the person claiming the privilege. United States v. Carlson, 617 F.2d 518, 520 (9th Cir. 1980); United States v. Neff, 615 F.2d 1235, 1240 (9th Cir. 1980). In such situations, the taxpayer must make some "positive disclosure," short of incriminating himself, that indicates where the danger lies. McCoy v. Commissioner, 696 F.2d 1234, 1236 (9th Cir. 1983); Edwards, 680 F.2d at 1270. Since Diehl failed to provide any information at all on his returns or at trial, the tax court properly denied his fifth amendment claim. See Edwards, 680 F.2d at 1270; Neff, 615 F.2d at 1240-41.

We have discretion to impose attorney fees and single or double costs as sanctions for frivolous appeals. Hudson v. United States, 766 F.2d 1288, 1292 (9th Cir. 1985) (per curiam); DeWitt v. Western Pacific R.R. Co., 719 F.2d 1448, 1451 (9th Cir. 1983). Blanket assertions of the fifth amendment privilege against self-incrimination on tax returns are frivolous, absent evidence indicating some reasonable basis for claiming the privilege. See Boday, 759 F.2d at 1474-75. Diehl offered no such evidence.

This court has previously rejected fifth amendment claims on tax returns as frivolous. See Hudson, 766 F.2d at 1292; Edwards, 680 F.2d at 1271. This appeal is similarly frivolous. We award attorney's fees and costs to appellee.

AFFIRMED.