Unpublished Disposition, 874 F.2d 817 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 874 F.2d 817 (9th Cir. 1989)

UNITED STATES of America; John D. Bradley, Special Agent,Internal Revenue Service, Petitioners-Appellees,v.Brad FRAUM, Respondent-Appellant.

No. 88-2582.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 12, 1989.Decided April 26, 1989.

Before WILLIAM A. NORRIS, BEEZER and BRUNETTI, Circuit Judges.


MEMORANDUM* 

Brad Fraum appeals from the district court's order rejecting Fraum's claim of a fifth amendment privilege and enforcing an IRS summons for the records of Tempe Life Center, Inc. "Whether the enforcement of the summons violates constitutional rights is a question of law, and reviewed de novo." Tornay v. United States, 840 F.2d 1424, 1429 (9th Cir. 1988). We affirm.

The IRS began a civil investigation of Fraum's tax affairs in 1985. A criminal investigation ensued. In 1987 the IRS issued a summons to Fraum to produce the business records of Tempe Life. Fraum failed to produce the records and the IRS petitioned for enforcement. Fraum contends that enforcement of the summons infringes upon his right not to incriminate himself, as guaranteed by the fifth amendment. We cannot agree.

The disposition of this case is squarely controlled by Braswell v. United States, 108 S. Ct. 2284 (1988). In Braswell, the taxpayer, Randy Braswell, was the sole shareholder of the corporation. The taxpayer's wife and mother were directors and officers of the corporation. Braswell resisted an IRS summons directed against the corporation and asserted that the fifth amendment prohibited enforcement of the summons because the act of producing the documents was personally incriminating. The Supreme Court rejected this argument and held that "a corporate custodian is not entitled to resist a subpoena on the ground that his act of production will be personally incriminating." Id. at 2295. The court left open the question of whether the same result would apply if the taxpayer was the sole employee and officer of the corporation. Id. at 2295 n. 11.

The district court found that Fraum and his wife Sharon were the incorporators, directors and officers of Tempe Life. While Braswell involved a corporation with three officers and Tempe Life has only two, we see no principled way to distinguish the facts of Braswell from the facts of this case. Fraum simply does not come within the question left open by the Supreme Court in Braswell. Accordingly, we affirm the district court's denial of Fraum's claim of fifth amendment privilege.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3