United States v. William A. Malis, as a Partner of Malis Investments, and Malis Investments, a Partnership

Malis Investments (“Investments”) and William A. Malis, a partner of Investments, appeal the district court’s order enforcing an Internal Revenue Service (“IRS”) summons. The summons directs Malis to produce books and records used to prepare Investments’ 1978 and 1979 federal tax returns. Malis claims that the act of producing these records will violate his fifth amendment privilege against self-incrimination.

The resolution of Malis’ claim depends first on the entity status of Investments and the capacity in which Malis holds its records. It is well established that an individual may not assert the fifth amendment privilege to avoid producing the records of a collective organization where he possesses such records in a representative capacity. Beilis v. United States, 417 U.S. 85, 88 , 94 S.Ct. 2179, 2183 , 40 L.Ed.2d 678 (1974). In Beilis itself, the Court applied this rule to a partner in a small law firm faced with a subpoena requiring production of the partnership’s financial records. Id. at 101 , 94 S.Ct. at 2189 .

The government contends that Investments is a partnership of Malis and his wife, and that the IRS summons seeks only partnership records. Malis asserts that…