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Your Foreign Bank Account Statements Are Not Privileged in the Fifth Circuit

Joining the Seventh and Ninth Circuits, the U.S. Court of Appeals has held that taxpayers have no Fifth Amendment privilege against self-incrimination when the government subpoenas their offshore bank account records. In re: Grand Jury Subpoena, No 11-20760 (5th Cir. September 21, 2012), the Fifth Circuit reversed the District Court's order quashing the government's grand jury subpoena on the grounds that the Required Records Doctrine excepted the bank records from the privilege against self-incrimination.

For the exception to be met, the government must show: 1) The purpose of the government's inquiry is essentially regulatory; 2) The information is to be obtained by requiring the preservation of records of a kind which the regulated party has customarily kept; and 3) The records themselves must have assumed public aspects which render them at least analogous to public document.

Like the Seventh and Ninth Circuits, the Fifth Circuit stressed that complying with the subpoena includes the taxpayer going to the bank to get the requested records and statements if they are not already in their possession. 

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