UNITED STATES OF AMERICA AND JOAN M. VAN DEN BERG, SPECIAL AGENT, PETITIONERS v. RICHARD W. RYLANDER, SR., AS PRESIDENT OF RYLANDER & CO. REALTORS, INC. AND AFFILIATED INVESTMENTS AND MORTGAGE COMPANY No. 81-1120 In the Supreme Court of the United States October Term, 1981 The Solicitor General, on behalf of the United States of America and Joan M. Van Den Berg, a Special Agent of the Internal Revenue Service, petitions for a writ of certiorari to review the judgement of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Constitutional and statutory provisions involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-3a) is reported at 656 F.2d 1313. The opinion of the district court (App. B, infra, 14a-20a) is not reported. JURISDICTION The judgment of the court of appeals was entered on September 4, 1981. On November 23, 1981, Justice Rehnquist extended the time within which to file a petition for a writ of certiorari to and including December 18, 1981. The jurisdiction of this Court is invoked under 28 U.S.C. 1254 (1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Fifth Amendment to the Constitution provides in pertinent part: No person shall be * * * compelled in any criminal case to be a witness against himself * * * . 26 U.S.C. 7402(b) provides: If any person is summoned under the internal revenue laws to appear, to testify, or to produce books, papers, or other data, the district court of the United States for the district in which such person resides or may be found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, or other data. 26 U.S.C. 7604(a) provides: If any person is summoned under the internal revenue laws to appear, to testify, or to produce books, papers, records, or other data, the United States district court for the district in which such person resides or is found shall have jurisdiction by appropriate process to compel such attendance, testimony, or production of books, papers, records, or other data. QUESTION PRESENTED Whether the court of appeals erred in holding that a respondent in a civil contempt proceeding, who has failed to obey a final order of the court directing him to comply with Internal Revenue Service summonses, may sustain his burden of establishing an inability to comply by submitting an uncross-examined statement that he does not have the summoned documents and asserting his Fifth Amendment privilege against self-incrimination. STATEMENT In connection with an Internal Revenue Service (IRS) civil investigation of the tax liabilities of Richard W. Rylander, Sr. for the years 1973 through 1977, IRS summonses were issued to respondent, as president of Rylander & Co. Realtors, Inc. (Rylander & Co.), and as president of Affiliated Investments and Mortgage Company, dba AIM Real Estate Marketing and Counselling (AIM). The summonses, issued on January 4, 1979, sought testimony and production of corporate books and records (App. A, infra, 2a). When respondent failed to comply with the summonses, the United States and Joan M. Van Den Berg, Special Agent of the Internal Revenue Service petitioned the United States District Court for the Eastern District of California for enforcement of the summonses, pursuant to 26 U.S.C. 7402(b) and 7604(a). On November 19, 1979, the district court ordered respondent to appear before it to show cause why he should not be compelled to testify and to produce the requested records (App. A, infra, 2a). Despite directives from the court, respondent failed to file any response other than a letter to the Deputy United States Marshal, in which he claimed that he was not the president of the subject corporations and, therefore, had been improperly served (ibid.; App. B, infra, 15a). This same letter was attached to an unsworn declaration which respondent submitted to the court on January 9, 1980, wherein he stated that he was not the president of either corporation, was not the president at the time of issuance of the summonses, and was not associated with either corporation. He filed no other written response to the orders to show cause nor did he or any other corporate representative appear at the enforcement hearing (App. B, infra, 15a). In view of respondent's letter, government counsel made an offer of proof at the enforcement hearing with regard to Rylander's relationship to the corporations and their status as viable entities (Tr. 4-14). /1/The offer of proof showed, inter alia, that Rylander & Co. was incorporated on April 1, 1969; that respondent opened a checking account at the Security Pacific Bank as president of Rylander & Co. and wrote checks on that account; that federal income tax returns for the company's 1972 and 1973 fiscal years were signed by respondent, as president of Rylander & Co.; that respondent signed a purchase agreement as president of Rylander & Co., purporting to sell all of its assets to AIM; and that the California Secretary of State's office had no record of dissolution of the corporation (Tr. 4-8). An offer of proof was made as well with respect to AIM. It showed, inter alia, that AIM was incorporated on July 18, 1972, with respondent listed as one of three directors; that AIM's federal income tax returns for fiscal years 1972 and 1973 were signed by respondent, as president; that respondent, as president, signed a fictitious name statement filed with the County of Sacramento; that respondent is the only authorized signatory for an account he opened for AIM with the Security Pacific Bank; that respondent was the president and agent of AIM for service of process; and that there was no record in the Secretary of State's office indicating dissolution of the corporation (Tr. 8-10). Agent Van Den Berg testified under oath that, if called, she would testify as to the truth of these matters with regard to both Rylander & Co. and AIM (Tr. 8, 10). On January 15, 1980, the court issued an order enforcing the summonses, requiring respondent to appear before the IRS agent and to produce for inspection and copying the records and documents of Rylander & Co. and AIM, as set forth in the summonses (App. E, infra, 26a-28a). /2/ Respondent was personally served with the order on January 27, 1980 (App. B, infra, 16a). Although he met with Agent Van Den Berg on February 4, 1980, he failed to make any of the documents available to her for inspection (App. A, infra, 2a; App. B, infra, 16a). The government subsequently petitioned the district court for orders to show cause why respondent should not be held in contempt (App. A, infra, 3a; App. B, infra, 16a). Several show cause orders were issued, but numerous attempts by the United States Marshal to effect personal service on the respondent were unsuccessful (App. A, infra, 3a; App. B, infra, 16a). The court determined that constructive service, however, had been accomplished and that defendant was avoiding personal service (Tr. 20; App. B, infra, 16a). It therefore issued a bench warrant resulting in respondent's arrest on July 11, 1980 (App. A, infra, 3a; App. B, infra, 16a). The show cause hearing was held on October 8, 1980 with respondent in attendance. /3/ At the conclusion of the hearing, the district court found that respondent had failed to comply with a valid order and found him in civil contempt. /4/ Respondent was remanded to the custody of the Attorney General "until such time as he purges himself of that contempt" (Tr. 262). The court indicated that respondent could purge himself by either (1) complying with the court's order of January 15, 1980, directing him to produce the summoned records or (2) by demonstrating his inability to produce them (Tr. 262-263). Immediately after announcing its decision, the court -- as it had on numerous occasions during the hearing -- inquired whether respondent was willing to testify as to why he could not produce the summoned records and thereby purge himself of contempt (Tr. 263). When respondent indicated that he would testify (ibid.), government counsel informed the court that if respondent took the stand the government would seek to cross-examine him (Tr. 264). The court thereupon adjourned the purge hearing until the following day in order that an attorney could be appointed to represent respondent (Tr. 264-267). /5/ Prior to the resumption of the hearing, respondent submitted a written statement entitled "Oath in Purgation of Contempt and Release of Records" (Tr. 273-275, 279-280). This declaration stated in part, "I swear on oath that I have no such records as called for in the Court's Order of January 16, 1980." When this statement was brought to the court's attention, it ordered the purge hearing continued until October 23, 1980, in order that appointed counsel could have additional time to prepare (App. A, infra, 4a; Tr. 280-287). When the hearing reconvened respondent took the stand and verified that he had submitted a statement in which he stated he did not have the records (Tr. 323). He refused, however, to answer any questions as to the whereabouts of the summoned documents, asserting the Fifth Amendment privilege against self-incrimination (ibid.). At that point, the government moved to strike his statement on the ground that it was denied the opportunity to cross-examine with regard to its contents (Tr. 324). /6/ The following day, on October 24, 1980, the district court issued Findings of Fact and Conclusions of Law in which it found that respondent, as president or other officer of the subject corporations, had possession or control, or both, of the books and records of the corporations (App. B, infra, 17a). It further held that the burden of proof was on respondent to show why he could not comply with the court's order enforcing the summonses and that he had failed to introduce any evidence at the contempt trial to establish this inability (id. at 18a). Accordingly, the court found respondent in contempt for failing to comply with the enforcement order. The court of appeals reversed. The court rejected the government's contention that respondent should be estopped in the contempt proceeding from litigating the issue of his ability to produce the records at the time the enforcement order was entered. Relying on the summary nature of enforcement proceedings and the absence of an express finding in the enforcement order that respondent had possession of the documents, the court ruled that respondent could raise nonpossession as a defense to contempt (App. A, infra, 6a-7a). The court of appeals further held that respondent's written statement that the documents were not in his possession or under this control was sufficient to meet his burden of proving his inability to comply with the order to produce and, in view of his claim that any further testimony might incriminate him, he could interpose his claim of Fifth Amendment privilege as a bar to cross-examination as to the contents of his statement (App. A, infra, 10a). Finally, the court concluded that in these circumstances the government must bear the burden of proving that the documents in question actually do exist and are in respondent's possession or control (id. at 10a-11a). Judge Norris concurred in a separate opinion. He found it unnecessary to adjudicate the consequences of respondent's assertion of the Fifth Amendment privilege; rather, he considered the oath in purgation sufficiently detailed to prove an inability to comply (App. A, infra, 12a-13a). REASONS FOR GRANTING THE PETITION In both this case and United States v. Meeks, 642 F.2d 733 (5th Cir. 1981), petition for cert. pending, No. 81-1063 (filed Dec. 7, 1981), /7/ the courts of appeals concluded that a party who has failed to produce records pursuant to a court order enforcing a summons may carry his burden in subsequent contempt proceedings by simply denying possession of the records and then resting on his Fifth Amendment privilege against self-incrimination to defeat any further inquiry. These cases present important questions concerning the application of the Fifth Amendment privilege against self-incrimination in civil contempt proceedings. Although this case and Meeks differ from one another in certain factual details, both involve situations in which a corporate officer who is called upon to produce corporate books and records initially resists production on grounds other than an inability to comply. Following a final, appealable order compelling him to produce the summoned records, the respondent, when directed to show cause why he should not be held in contempt, asserts for the first time, in a written submission, that he cannot produce any records and that any further statement might incriminate him. The decision below is in conflict with prior decisions of this Court and other courts of appeals on every issue raised: the estopped effect of the enforcement order, the burden of proof in contempt proceedings, and waiver of the Fifth Amendment privilege. If permitted to stand, the decision below would deal a crippling blow to the IRS's ability in the face of dilatory and obstructionist tactics, to obtain information essential to determining tax liabilities and to the ability of district courts, in any context, to compel compliance with valid orders by imposing contempt sanctions. 1. An individual ordered to respond to a summons or subpoena to produce books and records must either produce the requested documents or present defenses justifying his failure to do so. McPhaul v. United States, 364 U.S. 372, 379 (1960); United States v. Bryan, 339 U.S. 323, 330-331 (1950); United States v. Fleischman, 339 U.S. 349, 363 (1950). In the context of an IRS summons, those defenses must be asserted at an enforcement proceeding which, although ordinarily summary in nature, /8/ has all the elements of an adversary hearing, affording a summoned party a judicial determination of any challenges he wishes to make to the summons. Reisman v. Caplin, 375 U.S. 440 (1964); United States v. Euge, 444 U.S. 707, 719 (1980). By raising and proving the nonexistence or lack of control of the records, he makes an absolute defense to the summons. /9/ United States v. Bryan, supra, 339 U.S. at 330-331; United States v. Asay, 614 F.2d 655, 660 (9th Cir. 1980). With the failure or absence of such proof, the entry of an order enforcing the summons becomes a final, appealable order. Reisman v. Caplin, supra. The witness is thereafter barred by res judicata from litigating the issue of his possession and control of the summoned records at the time of the order. Maggio v. Zeitz, 333 U.S. 56, 75-75 (1948); United States v. Peter, 479 F.2d 147 (6th Cir. 1973); United States v. Secor, 476 F.2d 766 (2d Cir. 1973). The opinion of the court of appeals is thus in conflict with the decision of this Court in Maggio v. Zeitz, supra, and with the decisions of the Second and Sixth Circuits in United States v. Secor, supra, and United States v. Peter, supra. The court here determined that inasmuch as respondent did not appear and "actually litigate" (App. A, infra, 7a & n.6) any defenses at the enforcement stage -- despite notice and a hearing -- he is not foreclosed at the contempt hearing from raising defenses which were available to him earlier. In so holding, the court concluded that the enforcement proceeding did not result in a finding that respondent had the ability to comply with the summons (App. A, infra, 6a-7a). This holding ignores the order of the district court enforcing the summons. Although that order did not expressly rule on respondent's ability to comply -- an issue which had not been presented -- implicit in an enforcement order is a determination that respondent did, in fact, have the records sought. See Clinkenbeard v. Central Southwest Oil Corp., 526 F.2d 649, 651 (5th Cir. 1976). Moreover, the district court's Findings of Fact and Conclusions of Law, entered after the contempt hearing, explicitly found that respondent had possession or control of the records at all relevant times (App. B, infra, 17a). The court of appeals erred also in discounting the presumption that respondent, as president of the subject corporations, had possession or control of the corporate records or could furnish some reasonable explanation as to his inability to produce them. Lopiparo v. United States, 216 F.2d 87, 91 (8th Cir. 1954), cert. denied, 348 U.S. 916 (1955). Respondent's belated written statement that he could not produce the records was subject to appraisal by the district court, which had the duty to assess respondent's credibility and to determine the weight to be given to his statement. Nilva v. United States, 352 U.S. 385, 395 (1957); Lopiparo v. United States, supra, 216 F.2d at 91. There was no basis here for the panel to give that uncross-examined, self-serving statement a degree of credibility found unwarranted by the district court, and concomitantly to ignore the presumption that a corporate officer has a continuing ability to produce books and records. 2. Evidence introduced at a show cause hearing demonstrating that an alleged contemnor has failed to comply with a court order establishes a prima facie case of contempt. The burden then shifts to the alleged contemnor to go forward and to demonstrate by clear and convincing proof why he should not be held in contempt. McPhaul v. United States, supra, 364 U.S. at 379; Nilva v. United States, supra, 352 U.S. at 392; United States v. Bryan, supra, 339 U.S. at 330-331; United States v. Feischman, supra, 339 U.S. at 363; Oriel v. Russell, 278 U.S. 358, 366 (1929); United States v. Hankins, 565 F.2d 1344, 1351-1352 (5th Cir. 1978), opinion clarified and rehearing denied, 581 F.2d 431, cert. denied, 440 U.S. 909 (1979); Sigety v. Abrams, 632 F.2d 969, 974 (2d Cir. 1980); United States v. Hansen Niederhauser Co., 522 F.2d 1037, 1040 (10th Cir. 1975). The court of appeals carved out an exception to the established rule regarding the burden of proof in contempt cases, solely as a result of the respondent's invocation of the Fifth Amendment privilege. It thus transformed a self-serving statement, which has not been subject to cross-examination, into "evidence" deemed sufficient to sustain the otherwise substantial burden of establishing one's inability to comply with a court order. The only stated justification for this departure from settled decisional law was respondent's assertion of a Fifth Amendment privilege. Contrary to the court of appeals' conclusion, the prior decisions of this Court and other courts of appeals provide no basis for holding that a naked claim of privilege can shift the burden of proof. Indeed, in McPhaul v. United States, supra, a case in which the sole justification for refusing to present any evidence was a claim of Fifth Amendment privilege, this Court held that a witness's refusal to present evidence properly supported findings that he did not carry his burden and that he raised no issue regarding the existence of the subpoenaed records or his ability to produce them. Also in conflict with the decision here is United States v. Hankins, supra, a case in which the Fifth Circuit affirmed a civil contempt order, holding that Hankins had not met his burden of showing that he did not possess the summoned documents, and that the Fifth Amendment did not excuse him from having to meet this burden by the introduction of credible evidence including, if necessary, his own testimony. 565 F.2d at 1351. Similarly, in United States v. Johnson, 247 F.2d 5 (2d Cir. 1957), and Lopiparo v. United States, supra, the courts held that witnesses could not meet their burdens simply by denials of possession coupled with assertions of Fifth Amendment privilege. See also Sigety v. Abrams, supra. Thus, despite an assertion of the Fifth Amendment privilege, it is neither impermissible nor unfair to place the burden on the respondent to prove his inability to comply. Contrary to the panel's suggestion, the government does not contend that respondent must testify in order to meet his burden. He was not, after all, held in contempt for refusing to testify, but for failing to comply with the enforcement order. Accordingly, he had the choice of producing the documents, adducing evidence of his inability to comply, or being incarcerated for contempt. The manner in which he elected to proceed rested with him. Merely because a choice is difficult does not preclude requiring an individual to choose, as this Court recognized in McGautha v. California, 402 U.S. 183, 213 (1971). In nullifying respondent's burden, the court of appeals incorrectly placed on the government the burden of making an affirmative showing at the contempt hearing that respondent had possession or control of the corporate records. This imposes an obligation on the government which is in conflict with the standards set forth in United States v. Bryan, supra, and United States v. Fleischman, supra, cases in which this Court recognized that any reasons for not fully complying are peculiarly within the knowledge of the alleged contemnor. /10/ Thus, this Court observed that the government would be saddled with a serious practical handicap if it must prove a negative, i.e., that respondent had no good reason for failing to comply. United States v. Fleischman, supra, 339 U.S. at 362-363. /11/ 3. By accepting respondent's written, uncross-examined statement, introduced at the contempt proceedings, as credible evidence establishing his inability to comply, the court of appeals has created a rule of evidence which is in conflict with decisions of this Court and other courts of appeals. This Court has held that a person claiming an inability to comply cannot meet his burden of proof if he offers no evidence; nor can he do so by his own denials which the court finds incredible in context. Maggio v. Zeitz, supra, 333 U.S. at 75-76; see Lopiparo v. United States, supra, 216 F.2d at 92. It is well-established that self-serving statements made in an ex parte declaration are not considered credible evidence in the absence of an opportunity for cross-examination as to matters which the declaration puts into issue. Walker v. Johnson, 312 U.S. 275, 281 (1941); United States v. Hankins, supra; Lindhorst v. United States, 585 F.2d 361, 365 (8th Cir. 1978); Presser v. United States 284 F.2d 233 (D.C. Cir. 1960), cert. denied, 365 U.S. 816 (1961). If, on the other hand, the court of appeals correctly decided that Rylander's written submission was competent evidence, then it should also have found that Rylander waived his privilege against self-incrimination. A witness who takes the stand in his own behalf cannot refuse to be cross-examined; his voluntary offer of testimony upon any fact operates as a waiver of the Fifth Amendment privilege as to matters reasonably related to the subject matter of the direct examination. McGautha v. California, 402 U.S. 183, 215 (1971); Brown v. United States, 356 U.S. 148; 154-156 (1958); Johnson v. United States, 318 U.S. 189, 195 (1943); United States v. Beechum, 582 F.2d 898, 907-910 (5th Cir. 1978) (en banc), cert. denied, 440 U.S. 920 (1979); United States v. Hearst, 563 F.2d 1331, 1340 (9th Cir. 1977), cert. denied, 435 U.S. 1000 (1978). Moreover, a refusal to be cross-examined subjects the testimony given on direct to being stricken as incompetent. Brown v. United States, supra, 356 U.S. at 154-156. The holding of the court of appeals that respondent's affidavit, albeit uncross-examined, was competent evidence which satisfied his burden of proving an inability to produce the records is at odds with basic evidentiary principles and is squarely in conflict with the decision in United States v. Hankins, supra. In that case, the Fifth Circuit held that if no opportunity for cross-examination were afforded, a statement by the contemnor that he could not comply with a summons was not credible evidence. There, as here, the summoned party did not assert lack of possession or the nonexistence of records as a defense in the summons enforcement proceeding. The assertion that the records could not be produced was raised only when Hankins was called upon to show cause why he should not be held in contempt for refusing to comply with an order enforcing a summons. He then offered to testify but only under the condition that he not be cross-examined. The district court rejected this proposal and found him in contempt. The Fifth Circuit affirmed, holding that Hankins had not met his burden of showing that he did not possess the summoned documents, and that the Fifth Amendment did not excuse him from the possibility of having to testify in order to meet his burden of proof. Thus, while no one may be forced to give self-incriminating testimony, an individual who elects to testify may not give evidence on his own behalf and thereafter resist cross-examination on matters which he has put in issue. To allow this is to offer a witness a "positive invitation to mutilate the truth." United States v. Beechum, supra, 582 F.2d at 908. 4. The decision below will greatly hamper the IRS's ability to obtain information it needs to ascertain tax liabilities. As this Court has noted, a summons is not "an invitation to a game of hare and hounds." United States v. Bryan, supra, 339 U.S. at 331. Yet, it is just such gamesmanship that the decision below vindicates. Unless reversed, the decision would permit recipients of IRS summonses to toy with the government for years, claiming specious defenses to production of records, and to do so with impunity. Witnesses would be able to play this game of "hare and hounds," secure in the knowledge that at the end of the day a simple denial of possession and assertion of the Fifth Amendment privilege will provide immunity from contempt while depriving the IRS of information it has a right to obtain. Under the decision below, this game can continue while the statutes of limitations are running. /12/ Due to the great practical importance of the court's ruling, this Court should correct the erroneous refusal of the court of appeals to hold the respondent to the proper rules of estoppel, waiver and burden of proof. CONCLUSION The petition for a writ of certiorari should be granted. The Court may wish to consolidate this case with United States v. Meeks. No. 81-1063, or to hear the cases in tandem. Respectfully submitted. REX E. LEE Solicitor General JOHN F. Murray Acting Assistant Attorney General JERROLD J. GANZFRIED Assistant to the Solicitor General CHARLES E. BROOKHART JO-ANN HORN WILLIAM A. WHITLEDGE Attorneys DECEMBER 1981 /1/ "Tr." refers to the transcript of proceedings in the district court. /2/ Respondent took no appeal from the order enforcing the summonses (App. B, infra, 18a). /3/ Respondent was not represented by counsel at the hearing. He had twice previously dismissed appointed counsel, had refused to retain private counsel, and had clearly stated that he wished to proceed without counsel (App. A, infra, 3a n.2). His participation in the hearing consisted largely of repeated demands that the district judge recuse himself and denials of the court's jurisdiction (see, e.g., Tr. 54, 58-59, 104, 140, 266; see also App. B, infra, 14a). /4/ Respondent was also found to be in criminal contempt for failure to produce documents pursuant to the order of the district court enforcing the summonses and for failing to appear at a March 24, 1980, show cause hearing. An appeal of the criminal contempt conviction is pending before the Ninth Circuit (Nos. 80-1813, 80-1702 & 80-1703). This case was argued on June 9, 1981. /5/ This appointment of counsel was made at the suggestion of the court. Although respondent had twice previously dismissed appointed counsel, he now indicated that he would accept the services of counsel (App. C, infra, 21a-22a; Tr. 264, 273, 284-285, 294-295; see note 3, supra). /6/ The court denied the government's motion to strike respondent's affidavit (Tr. 323), but later decided it would take the motion under submission (Tr. 324; App. C, infra, 22a). It never specifically ruled on the motion thereafter. /7/ The rationale of the Fifth Circuit in Meeks is slightly different from that employed by the court of appeals in this case. The differences in the two cases make it appropriate for this Court to grant both petitions so that all the ramifications of the important questions presented may be fully explored. /8/ See United States v. Powell, 379 U.S. 48 (1964), which sets forth the conditions the government must meet in an enforcement proceeding. Those conditions were satisfied in this case, as the district court found. See App. B, infra, 19a. /9/ This Court has recognized that a rule requiring defenses to be raised on a timely basis has the salutary effect of allowing any defects in the process to be remedied at an appropriate stage. United States v. Bryan, supra, 339 U.S. at 332-333; United States v. Fleischman, supra, 339 U.S. at 352. The practical benefits of this rule are evident in this case. Although respondent did not appear at the enforcement hearing, the government responded with a detailed offer of proof to the only defense respondent had suggested -- i.e., his specious contention that he was not an officer of Rylander & Co. and AIM. The government can not nor should it be required to divine all unasserted defenses and respond to each of them. That, however, is the inevitable result of the opinion below. /10/ The court compounded this error by concluding that the government could not meet its burden by relying on the evidence most likely available to prove facts within the respondent's knowledge -- i.e., "inferences that the records sought are of a type ordinarily kept by corporations, and that a person in the (respondent's) position would ordinarily have control over such records." App. A, infra, 10a. /11/ The court of appeals' error is clearly demonstrated by the facts of this case. Although the government was not required to do so, it attempted at the contempt hearing to adduce evidence of respondent's ability to comply. The government called as witnesses two corporate officers of Rylander & Co. and AIM, with the following results: one witness, respondent's son, asserted his Fifth Amendment privilege to all but rudimentary questions; the other stated that he was not in fact an officer of the corporations; and there was evidence that both witnesses had been ordered by respondent not to comply with production orders (Tr. 167, 235-236; Gov't Exh. 32). /12/ See 26 U.S.C. 6501(a), (c) and 6531. Appendix Omitted