In testimony given before a Grand Jury pursuant to a grant of immunity, appellant Patrick described a gambling business in which he held a 50% interest in 1967, 1968 and 1969. Based on that testimony the government made jeopardy assessments against Patrick and the Estate of his deceased partner, Epstein, of $835,558, for unpaid gambling taxes plus interest. In separate proceedings, Patrick and Epstein's Executors sought to enjoin the assessment and collection of the taxes, and Patrick sought the suppression of his Grand Jury testimony. The principal question presented by these three appeals is whether the district court properly held that relief was foreclosed by the statutory bar to such an injunction notwithstanding the allegations of misuse of the Grand Jury.

Patrick testified before the Grand Jury on February 6 and February 27, 1974. Excerpts from his testimony were placed in the record as an exhibit supporting the government's motion to dismiss Patrick's complaint. His testimony was given during the course of an investigation of gambling activities on Chicago's North Side. In his first appearance on February 6 he described certain practices and participants in that activity, and expressly acknowledged that he was a 50% owner of a "Sports Office" operated by Epstein which accepted wagers on sporting events; he identified an item of "Miscellaneous" income of $38,000 on his 1969 Federal Income Tax return as his share of the net income from the Sports Office during that year. He also acknowledged having had an interest in the business since 1955 or 1957, but denied participation after 1969.

In Patrick's second appearance on February 27, the prosecutor asked him a series of questions which arguably were intended to establish the amount of his wagering tax liability for 1967, 1968 and 1969. He first had Patrick reconfirm his testimony about the miscellaneous item on his 1969 income tax return, and then established that comparable entries, each for $28,000, on his 1967 and 1968 returns also reflected his share of the net income from the Sports Office in those years. The prosecutor then asked Patrick what amount of gross wagers would be required to produce those net profits. Patrick was unable to make even a rough estimate of the percentage of the gross that was represented by the net income figures, explaining that the day-to-day operation of the business had been Epstein's responsibility. Had Patrick given informative answers to these questions he would have provided a basis for determining the amount of his wagering tax liability since that tax is computed as 10% of the gambler's gross wagers. Other questions germane to the gambling investigation were also asked of Patrick during his appearance on the 27th as well as on the 6th.

As a result of his investigation the prosecutor concluded that Patrick had never filed any wagering tax returns for the money he received from the Sports Office, that he was liable for such taxes, and that since gamblers deal only in cash and maintain no records or bank accounts, a jeopardy assessment against Patrick would be appropriate.1 Accordingly, on April 9, 1974, without notice to Patrick, he obtained an order from the district court authorizing the release of excerpts of Patrick's Grand Jury testimony and furnished those excerpts to the Internal Revenue Service.2

On April 18, 1974, the Acting District Director approved a jeopardy assessment against Patrick for wagering taxes in the amount of $835,558, including interest.3 The assessment was based on an estimate of wagers accepted derived from Patrick's reported gambling income. This income, representing 50% of the Sports Office profits, was doubled to determine the total profit from the gambling business. This total profit was then divided by .03, the assumed rate of net profit on a gambling business, to determine the total amount of wagers accepted, which were subject to the 10% wagering tax. The 3% figure was obtained from an unofficial source a book entitled Scarne's Complete Guide to Gambling. The period covered by the assessment was January 1, 1967, through December 31, 1969, the period identified in the Grand Jury testimony. An assessment of $237 was made for the occupational tax, § 4411, for the same period.4

On December 13, 1974, the Internal Revenue Service amended its assessment for wagering tax to $125,328, based on a change in the estimated rate of net profit on the wagers accepted from 3 to 15%.

On May 2, 1974, Patrick filed a complaint in district court "for the recovery of Internal Revenue taxes erroneously and illegally assessed and collected and to enjoin further actions by the Defendant, its officers, attorneys and employees from proceeding with collection under the purported authority of such assessments and to declare such assessments illegal and void, and the determination of jeopardy arbitrary and without basis in fact." The government filed a motion to dismiss supported by an affidavit and exhibits, including relevant excerpts from Patrick's Grand Jury testimony. On August 2, 1974, the district court dismissed the complaint on the ground the injunctive relief is barred by the Anti-Injunction Statute, 26 U.S.C. § 7421(a). Patrick has appealed from that order.

On September 9, 1974, Patrick filed a motion in district court praying that the transcripts of his testimony be suppressed and their use in any proceeding or by any agency of the United States be prohibited. This motion was denied on September 12, 1974, on the ground that the issues raised were premature and would more properly be raised during the course of the tax refund litigation. Patrick has taken a separate appeal from that order.

On May 15, 1974, the executors of Epstein's Estate filed a separate action seeking an injunction. Their attempt to avoid the bar of § 7421 rests on a different theory from Patrick's. They allege that the assessment against the estate is based entirely on Patrick's testimony about transactions between Patrick and Epstein before the latter's death, that Patrick is an "interested party" in this suit between the United States and the Estate, and that Patrick's testimony is therefore inadmissible under the Illinois Dead Man's Statute, Chap. 51, Paragraph 2, Ill.Rev.Stats. The district court dismissed Epstein's complaint on August 2, 1974, explaining that the dismissal was made for "substantially the same reason that plaintiffs' argument in Patrick was unavailing: the question of admissibility of evidence is not grounds for an exception to the anti-injunction provisions of 26 U.S.C. § 7421(a)". The Estate appeals from this dismissal.

By statute enacted in 1867, and effective continuously ever since, Congress has directed that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person."5 In its recent opinion in Bob Jones University v. Simon, 416 U.S. 725, 736-745, 94 S. Ct. 2038, 2043, 40 L. Ed. 2d 496, the Supreme Court reviewed the history of interpretation of the Anti-Injunction Statute and concluded that the stringent, almost literal, construction adopted in Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 82 S. Ct. 1125, 8 L. Ed. 2d 292, is viable today. Specifically, the Court held that irreparable injury to the taxpayer is not a sufficient basis for avoiding the statutory bar; instead of focusing on the degree of harm to the taxpayer, any exception to the statute must rest on a complete absence of merit in the government's position. The proposed tax assessment must be "plainly without a legal basis"; the case must be one in which the government has "no chance of success on the merits.6

The Court summarized and reaffirmed its unanimous holding in Williams packing:

Only upon proof of the presence of two factors could the literal terms of § 7421(a) be avoided: first, irreparable injury, the essential prerequisite for injunctive relief in any case; and second, certainty of success on the merits. (370 U.S.) at 6-7 (82 S. Ct. 1125 at 1128-1129). An injunction could issue only "if it is clear that under no circumstances could the Government ultimately prevail . . . ." Id., at 7 (82 S. Ct. 1125 at 1129). And this determination would be made on the basis of the information available to the Government at the time of the suit. "Only if it is then apparent that, under the most liberal view of the law and the facts, the United States cannot establish its claim, may the suit for an injunction be maintained."

416 U.S. at 737, 94 S. Ct. at 2046. In Williams Packing the Court had added:

To require more than good faith on the part of the Government would unduly interfere with a collateral objective of the Act protection of the collector from litigation pending a suit for refund.

370 U.S. 1, 7, 82 S. Ct. 1125, 1129. Thus, the statute only becomes inapplicable when the government should have known, at the time it made the assessment, that it had no chance of prevailing on the merits.

The several contentions advanced by appellants are insufficient to overcome this stringent reading of the statute. Since all three cases before us are in effect, actions to restrain the collection of a tax,7 affirmance is required on all three appeals. We turn to appellant's specific arguments.

For different reasons, both Patrick and Epstein's Executors argue that the Grand Jury transcripts will not be admissible and that, without the transcripts, no evidence of tax liability exists.

Patrick argues that the transcripts were obtained illegally, and, therefore, by analogy to the exclusionary rule applicable to evidence obtained in violation of the Fourth Amendment they are inadmissible in a civil tax proceeding.8 Three arguments are made to support the claim that the transcripts were obtained illegally: first, that the Internal Revenue Service should not have provided the U. S. Attorney with copies of Patrick's tax returns; second, that the questioning before the Grand Jury was intended to obtain evidence for use in a civil tax proceeding; and third, that the release of the Grand Jury transcripts to the District Director violated F.R.Crim.P. 6(e).

Epstein's Executors argue that the transcript is hearsay as to Epstein and that the Illinois Dead Man's Statute makes Patrick an incompetent witness against the decedent's estate.

None of these arguments has sufficient force to satisfy the Williams Packing standard of demonstrating that the government has no chance of prevailing.

This court has consistently refused to consider questions involving the admissibility of evidence in suits to restrain the collection of a tax. Koin v. Coyle, 402 F.2d 468 (7th Cir. 1968); Kennedy v. Coyle, 352 F.2d 867 (7th Cir. 1965); Zamaroni v. Philpott, 346 F.2d 365 (7th Cir. 1965). This is not a case in which we should deviate from that policy,9 for plainly there is substance to the government's opposition to each of the objections to the admissibility of the transcripts.

The statutory prohibition against the disclosure of income tax returns10 does not prevent their use by a prosecutor in aid of a Grand Jury investigation of criminal activities. Since this investigation dealt with the whole range of gambling activities on Chicago's North Side, in which Patrick was a participant, his tax returns could properly be used as a basis for questioning him.11

There is force to Patrick's argument that certain questions asked during his second appearance before the Grand Jury seem to have been directed at establishing his civil tax liability.12 Even if that portion of the transcript should be excluded, however, the basis for the jeopardy assessment would remain. For Patrick's testimony about the miscellaneous item on his 1969 return, his acknowledgment of prior ownership of 50% of the Sports Office, and the existence of comparable miscellaneous items on his 1967 and 1968 returns, were all available prior to Patrick's second appearance before the Grand Jury and provided a reasonable basis for the conclusion that he was liable for unpaid wagering taxes for all three years. Thus, even if we accept Patrick's interpretation of the prosecutor's motivation during his second appearance, it would not necessarily follow that the entire transcript of his testimony should be suppressed.

A review of the excerpts of his testimony which are before us makes it clear that the Grand Jury was not convened, and that Patrick was not granted immunity, merely for the purpose of investigating his civil tax liability. Moreover, the fact that Patrick had been granted immunity from criminal prosecution does not avoid the government's argument that questioning about his business could reasonably be expected to shed light on the criminal activities of others in the same line of work in the same area. It is manifest that the government has some chance of success in persuading the trier of fact that the basis for the jeopardy assessment was disclosed during questioning of Patrick which was pertinent to the criminal investigation.

It is equally clear that the government has some chance of convincing the trial judge that the district court did not abuse its discretion when it authorized release of the Grand Jury transcript pursuant to Rule 6(e) of F.R.Crim.P.13 Patrick argues that the rule does not authorize disclosure for use in aid of administrative proceedings. See In re Grand Jury Proceedings, 309 F.2d 440 (3rd Cir. 1962). The language of the rule, however, gives the district court power to permit disclosure "preliminarily to or in connection with a judicial proceeding." In this case the district court could reasonably anticipate that judicial proceedings would arise out of a contest over Patrick's failure to file any gambling tax returns when he admittedly had received such income.14 We do not hold that it was proper to order release of the transcript without at least giving the taxpayer notice and an opportunity to object, but in view of the broad discretion conferred on the district court by Rule 6(e), the public purpose of the disclosure, and the stringent requirements of the William Packing test, there surely was not error so plain that an injunction against use of the transcript may be granted notwithstanding the mandate of § 7421(a).

Epstein's Executors' request for an injunction must be denied for a separate reason, even if we assume that the transcript of Patrick's testimony before the Grand Jury is not admissible against the Estate. As to the allegation that the transcripts are hearsay, the government could in good faith assume that Patrick will be available to repeat his testimony as a live witness in a civil trial. The government may legitimately contend that the immunity order will protect Patrick against the use of the same evidence repeated in another federal proceeding, and that the protection will apply to a state as well as a federal prosecution. Alternatively, the government may rely on the bar of limitations as an answer to any Fifth Amendment objection which might be raised by Patrick. Similarly, there is a serious question whether the Illinois Dead Man's Statute would be applicable in a federal refund suit,15 and even if it should apply, Patrick's interest may not be sufficiently adverse to the Estate's to make him an interested person within the meaning of the Illinois statute.16 We cannot say that the government will have "no chance" of obtaining sufficient testimony from Patrick to support the assessment against the Estate.

In sum, we decline to decide any of the evidentiary questions raised by the taxpayers in these injunction suits, finding sufficient substance in the government's arguments to meet the Williams Packing standard.

In addition to challenging the admissibility of his Grand Jury testimony, Patrick makes four attacks on the jeopardy assessment of $835,721: (1) that the use of testimony taken pursuant to a grant of immunity as a basis for a jeopardy assessment "offends the principles of due process"; (2) that an arbitrary and capricious method of computing the amount of the tax was used; (3) that the assessment is barred by the three-year statute of limitations; and (4) that there was a failure to comply with the statutory requirement that the Secretary's delegate must make a finding that the collection of the tax is in jeopardy.

There is no merit to the first argument. Patrick's Fifth Amendment privilege against being compelled to be a witness against himself in any criminal case does not afford him protection against giving testimony that will disclose his civil liability unless, of course, that testimony may subject him to criminal prosecution. The grant of immunity removed his only legitimate objection to giving the government an honest and complete statement, even if compelled, of the facts which may give rise to gambling tax liability. Unlike a forfeiture or the imposition of a fine, the jeopardy assessment is merely a method of enforcing a civil obligation, rather than a form of punishment. Cf. United States v. Coin & Currency, 401 U.S. 715, 91 S. Ct. 1041, 28 L. Ed. 2d 434.

The second argument, which questions the manner of calculating the tax due, is supported by the holding in Pizzarello v. United States, 408 F.2d 579 (2d Cir. 1969), and by the fact that, after conference with counsel for the taxpayers, the government voluntarily reduced the assessment from $835,721 to $125,328.17 The facts before us, however, are not so extreme as those in Pizzarello, where collections during a three-day period were extrapolated to cover a period in excess of five years. Here, the amount of profit from the gambling business was based on Patrick's own testimony and tax returns; the computation of the gross receipts required to produce that profit was based on a factor found in a published text, the reliability of which the government had no reason to doubt. Under the Williams Packing formulation, these facts do not enable us to question the agents' good faith even though they subsequently were persuaded that the gambling business had been much more profitable (and therefore that the gross receipts were much smaller) than they originally believed.

Patrick's contention that the tax is barred by the three-year statute of limitations18 is met by the government's response that since no return was filed, the statute has not run. This response is supported both by a specific statute19 and by an en banc decision of the Fifth Circuit, Lucia v. United States, 474 F.2d 565 (1973). It therefore cannot be said that the government has no chance of prevailing on this issue.

We also reject Patrick's contention that there was a failure to comply with statutory requirements that the Secretary's delegate (in this case the District Director) "believes that the collection of . . . tax . . . will be jeopardized by delay" and make "a finding that the collection of such tax is in jeopardy."20 Patrick's argument does not rest on the ground that the finding was not formally made by the Acting District Director, but rather that the finding was made on the basis of the covering letter from the Assistant United States Attorney and on the basis of a section of the I.R.S. manual, rather than an independent investigation of the facts by the Acting District Director. By hypothesis, jeopardy assessments are appropriate in cases in which expedited procedures may be required. It therefore is not frivolous for the government to contend that in such cases the Director may rely on reasonable presumptions and on information supplied by another branch of government. In any event, in this area the law is somewhat unclear; we therefore cannot say that the government was not acting in good faith when it made the jeopardy assessment.21

Patrick also argues that forcing him to resort to a refund suit to challenge the amount of the jeopardy assessment, in whole or in part, will put an impermissible burden on his Fifth Amendment privilege against self-incrimination.22 Since he must assume the burden of proof in a refund suit, he must necessarily present evidence which will be incriminating or else forego his claim for the return of his money. As a practical matter, the jeopardy assessment against a gambler is therefore, according to Patrick's argument, a form of compulsion forbidden by the Fifth Amendment.

Arguably, the practical compulsion involved in this jeopardy assessment is not constitutionally distinguishable from any other civil burden imposed by the government on a citizen which is presumptively valid and which can only be rebutted by a disclosure of criminal conduct. Persons who derive income from unlawful activities are not immune from tax liability;23 they voluntarily assume some risk that they may not be in a position to participate in civil litigation, including tax refund litigation, as effectively as law-abiding citizens because evidence of criminal conduct may be critical to a fair presentation of their side of the controversy.

Assuming, however, that the jeopardy assessment against Patrick will compel him to testify against himself in a subsequent refund case, we are nevertheless satisfied that no violation of his Fifth Amendment privilege will result. For on the hypothesis that the evidence he presents in a refund suit is testimony which he has been compelled to give against himself within the meaning of the Fifth Amendment, it would follow that he will be entitled to an implied immunity against the use of such testimony in any federal criminal proceeding. Cf. Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562.

Furthermore, on the facts alleged by Patrick, such later testimony would be elicited only because the government could use the grand jury testimony as a basis for the assessment. Thus, any testimony elicited in the tax proceeding would be "information . . . indirectly derived from . . . testimony" compelled under the original immunity grant and thus could not be used against Patrick in any criminal proceeding. Kastigar v. United States, 406 U.S. 441, 449, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972). Such derivative use immunity, of course, would also prevent state prosecuting authorities from using the testimony. Murphy v. Waterfront Comm'n, 378 U.S. 52, 84 S. Ct. 1594, 12 L. Ed. 2d 678 (1964).

Finally, Patrick contends that the use of his immunized testimony against him in a civil case shows that the immunity granted under 18 U.S.C. §§ 6002 and 6003 is not as broad as the privilege it supplants. The Fifth Amendment provides that no person shall be compelled to be a witness against himself in a criminal case. A witness has no Fifth Amendment privilege against giving testimony detrimental to his interests in a civil case unless such testimony tends to incriminate him; if the risk of criminal consequences is removed by a grant of immunity, no Fifth Amendment objection remains. United States v. Cappetto, 502 F.2d 1351 (7th Cir. 1974). See Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972).

Since plaintiffs have not been able to show that the government cannot possibly prevail, these actions are barred by the Anti-Injunction Statute and were correctly dismissed.

Affirmed.