ON REHEARING EN BANC
Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN and WALLACE, Circuit Judges.*
WALLACE, Circuit Judge:A jury found Garner guilty of conspiring 1 to violate various federal gambling *237statutes.2 He appeals the conviction based upon that verdict, alleging error of constitutional proportions. We affirm.
The gist of the government’s evidence was that co-conspirators Lawler and Swank were making elaborate bets on selected horses on the basis of information supplied by Garner. Near the conclusion of the case, the government introduced into evidence, over objection, Garner’s federal income tax returns (Forms 1040) for the years 1965, 1966 and 1967. Those returns indicated that Garner derived almost all of his income from gambling or wagering.3 Although the prosecutor did not question any witnesses concerning the returns, he did refer to them during his closing argument to the jury.
Garner argues that the introduction of his tax returns into evidence in this non-tax prosecution violates his privilege against self-incrimination.4 He claims that the decision in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), eroded the vitality of this circuit’s rule that income tax returns may be used as evidence in a non-tax prosecution. See Stillman v. United States, 177 F.2d 607, 617-618 (9th Cir. 1949).5
At issue is the nature of the privilege against self-incrimination guaranteed by the Fifth Amendment.6 The language of the amendment would permit a construction which limited its availability to a defendant’s oral testimony in a criminal proceeding.7 However, in 1892, the Supreme Court rejected so narrow an interpretation.8 The privilege is now available to a potential criminal defendant well before proceedings actually begin 9 as well as to a witness in criminal,10 civil,11 grand jury,12 or legislative13 proceedings. However, the scope of a defendant’s privilege is greater than *238that he would enjoy if he were only a witness. Not only may a defendant refuse to answer questions but he is also entitled not to be called as a witness at his trial. The witness, on the other hand, has no right to be immune from inquiries though he mov decline to respond to them by claiming his privilege. This differing treatment results from the nature of the privilege. See C. McCormick, Evidence §§ 130, 136 (2d ed. 1972).
Garner stated in his tax returns that he derived income from gambling and wagering. At that time, he was not a defendant but a witness. The privilege, therefore, must be asserted at some time. The simple question is whether he should have claimed his privilege at the time he filed his return or whether he could wait until his subsequent conspiracy trial.14
Our inquiry necessarily must begin with United States v. Sullivan, 274 U.S. 259, 47 S.Ct. 607, 71 L.Ed. 1037 (1927).15 Sullivan was a bootlegger who did not file income tax returns. He was convicted for this failure and appealed. A unanimous Court upheld the conviction, holding that a tax return was required. Justice Holmes wrote:
If the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all. We are not called on to decide what, if anything, he might have withheld. Most of the items warranted no complaint. It would be an extreme if not an extravagant application of the Fifth Amendment to say that it authorized a man to refuse to state the amount of his income because it had been made in crime. But if the defendant desired to test that or any other point he should have tested it in the return so that it could be passed upon.
Id. at 263-264, 47 S.Ct. at 607. Sullivan clearly establishes that all citizens must file tax returns despite obvious hazards of self-incrimination. By stating that “if the defendant desired to test that or any other point he should have tested it in the return . . . ,” the Court intimates that full disclosure of the amounts and sources of income must be made unless the taxpayer makes an objection in his return, asserting his privilege not to incriminate himself.
Garner provided the source of his income on his return and failed to invoke his privilege. Can he, at the late date of his trial, assert it? Assume Garner had witnessed an automobile accident in the parking lot of Pomona Fairgrounds on September 25, 1968. If he had been subpoenaed as a witness in a civil trial concerning the accident and had testified that he was there and saw everything, those admissions could have been used in his conspiracy trial to prove that he was at the race track on the day when the first race was allegedly fixed. His privilege would be unavailable because he had failed to assert it during the civil trial. At the civil trial, he was subpoenaed to testify by the power of the court; and he could have been awed by the direction of the judge to answer the questions. But, if he failed to assert his privilege and proceeded to testify, his answers could be *239used against him. His failure to invoke his privilege in his tax return produces a similar result.
Recent Fifth Amendment cases have indicated that compelled disclosures in response to governmental inquiries may violate the privilege against self-incrimination. See Leary v. United States, 395 U.C. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Albertson v. SACB, 382 U.S. 70, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965). However, the compulsion in those cases was intended to elicit incriminating responses and was directed at individuals “inherently suspect of criminal activities” in “an area permeated with criminal statutes . . . . ” 16
This case, Sullivan and California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971), are different. The questions in Sullivan and here were neutral on their face and directed to the public at large in an effort to implement the federal tax power. In fact, many cases have distinguished Sullivan for exactly those reasons.17 Byers involved a noncriminal state statute “directed at all persons . . . who drive automobiles in California.” 402 U.S. at 430, 91 S.Ct. at 1539. The Court noted that self-reporting was “indispensable to its fulfillment.” Id. at 431. In other words, the questions asked in each of these cases were designed to asssist the government in its accomplishment of a legitimate goal. They were not designed to produce incriminating answers and thus should be treated differently.
Although the dissent vigorously contends that Garner was compelled to incriminate himself and that his answers were not voluntary, the question of “volutariness” relates more to the Miranda situation than it does to Garner’s ease. Here, it only tends to divert from the critical issue. There is a vast difference between an in-custody interrogation and filling out a tax return in the quiet of one’s home. We have no doubt that every taxpayer is under a form of “compulsion” to complete and file his return not dissimilar to the compulsion involved in other activities in which the government also has a legitimate regulatory interest. This form of compulsion, however, is not the kind of involuntariness that was condemned in Miranda. The questions asked on the tax return were completely neutral; only Garner knew a response might be incriminating. As to all taxpayers in general, there was only “compulsion” to provide the government with the information it was entitled to demand. As to Garner specifically, there was “compulsion” to incriminate. But because Garner knew his answers might be incriminating, he had a choice either of claiming his privilege or declining to do so and answering the questions. Had Garner chosen to claim his privilege on the tax return, the government would ultimately have had to decide whether it was willing to grant him immunity in order to obtain the answer.18 But the granting of immunity must be in the hands of the government, not in .the *240hands of taxpayers who provide incriminating answers rather than assert their privilege.19
Accepting appellant’s contention would provide us with an unpalatable result. We have held that a taxpayer must assert his privilege against self-incrimination in his return in response to a specific question. Just as he has no right to be immune from questioning, likewise he is not free to immunize himself from prosecution by volunteering information to the government. To hold otherwise would allow any witness in any proceeding the later protection of the Fifth Amendment to frustrate the use of information derived from earlier testimony when that witness failed to invoke his privilege. If this were the law, immunity from use of incriminating information might well be achieved without government approval by merely including it in a tax return. Such a decision would “embark us on unchartered and treacherous seas.” Byers, supra, 402 U.S. at 458, 91 S.Ct. at 1553 (Harlan, J., concurring) .20
An equally disquieting result of an acceptance of appellant’s contention would be the difficulty in defining the outer perimeters. If a privilege can be asserted at a later date for information contained in a tax return, could not every subpoenaed witness in court make the same claim? Would not every response to an inquiry, originating at any level of government from census taken to property tax questioner, repose a right in the respondent to later shield those answers ? This “would be an extreme if not an extravagant application of the Fifth Amendment . ” Sullivan, supra, 274 U.S. at 264-264, 47 S.Ct. at 607.
We have stated that Garner failed- to assert his privilege. Others might construe this as an implied waiver of its protection. That characterization overlooks the fact that the Fifth Amendment does not automatically cloak our every utterance in the fabric of its rubric. We must invoke and assert its benefits. “It is important to reiterate that the Fifth Amendment privilege is a personal privilege : it adheres basically to the person, not to information that may incriminate him.” Couch v. United States, 409 U.S. 322, 328, 93 S.Ct. 611, 616, 34 L.Ed.2d 548 (1973). Essentially, the question is whether in this situation the Fifth Amendment is a right which can be invoked retrospectively or whether it is a privilege which must be claimed when the incriminating information is requested. Here, we hold it to be a privilege which Garner should have asserted in his tax return. Having failed to do so, he may not claim its benefit during his trial.
Affirmed.
Circuit Judges CHAMBERS, MERRILL, DUNIWAY, EUGENE A. WRIGHT, TRASK and CHOY concur in this opinion.
Honorable Joseph T. Sneed was inducted subsequent to the submission of this case and, therefore, did not participate in the decision.
. See 18 U.S.C. § 371.
. See 18 U.S.C. § 224 (bribery in sporting contests); 18 U.S.C. § 1084 (interstate transmission of bets or wagers by one in the business of betting or wagering); and 18 U.S.C. § 1952 (use of an interstate facility to distribute proceeds of unlawful activity).
. Although he listed income from those sources, lie took none of the offsetting deductions allowed by law. See, e. g., Int.Rev. Code of 1954, § 165(d).
. The original panel opinion in this case (June 5, 1972), agreed with this contention, dismissing his other claims as without merit or lacking sufficient substance. That opinion already has provoked considerable academic comment. See, e. g., comment, 86 Harv.L.Rev. 914 (1973) ; 17 How.L.J. 919 (1973) ; 26 Vand.L.Rev. 350 (1973) ; 34 U.Pitt.L.Rev. 510 (1973) ; 30 Wash. & Lee L.Rev. 182 (1973) ; 7 U.Rich.L.Rev. 371 (1972) ; 14 Wm. & Mary L.Rev. 203 (1972) ; 24 Hastings L.J. 959 (1973) ; Gannen v. United States: Regulatory and Taxing Schemes, Compelled Disclosures, and the Privilege Against Self-Incrimination, 8 Ga. L.Rev. 160 (1973).
. Although Stillman relied in part on the public records language of Int.Rev.Code of 1939, § 255, and on Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948), we choose neither as a basis for this decision.
. The Fifth Amendment of the United States Constitution provides in part: “nor shall [any person] be compelled in any criminal case to be a witness against himself . . . .”
. “I am convinced that the Fifth Amendment’s privilege against compulsory self-incrimination was originally meant to do no more than confer a testimonial privilege upon a witness in a judicial proceeding.” Grosso v. United States, 390 U.S. 62, 76, 88 S.Ct. 709, 718, 19 L.Ed.2d 906 (1968) (Stewart, J., concurring).
. Counselman v. Hitchcock, 142 U.S. 547, 12 S.Ct. 195, 35 L.Ed. 1110 (1892). The case’s holding was rather narrow, but the opinion contained broad language indicating availability in any criminal matter. Id. at 562, 12 S.Ct. 195. Thirty years later, the Court held that the privilege applied “alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it.” McCarthy v. Arndstein, 266 U.S. 34, 40, 45 S.Ct. 16, 17, 69 L.Ed. 158 (1924).
. See, e. g., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. Counselman v. Hitchcock, supra note 8.
. McCarthy v. Arndstein, supra note 8.
. United States v. Monia, 317 U.S. 424, 427, 63 S.Ct. 409, 87 L.Ed. 376 (1943), relying upon Counselman v. Hitchcock, supra, note 8.
. Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964 (1955).
. We believe the Fifth Amendment privilege is at issue in this case. This may not be a universal conclusion. Justice Harlan would not have extended the privilege to a regulatory scheme such as that involved in California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971). He contended that the privilege was not founded on absolute values and that conflicting interests must be balanced to determine whether the privilege exists. Id. at 449-450, 454, 458, 91 S.Ct. 1535. (Harlan, J., concurring). See also Meltzer, Privileges Against Self-Incrim-¡nation and the Hit-and-Run Opinions, in 1971 Sup.Ct.Rev. 16-25.
. An earlier case, Johnson v. United States, 228 U.S. 457, 33 S.Ct. 572, 57 L.Ed. 919 (1913), might also serve as a starting point. Johnson transferred his books to the trustee in bankruptcy under the compulsion of law. Bankruptcy Act § 70, cli. 541, 30 Stat. 544 (1898) (codified at 11 U.S.C. § 110). These books were introduced against him in a criminal prosecution for concealing money from the trustee. The Court held that Johnson was not privileged from their production.
. Albertson, supra, 382 U.S. at 79, 86 S.Ct. at 199.
. See Grosso, supra, 390 U.S. at 67, 88 S.Ct. 709; Marchetti, supra, 390 U.S. at 48-49, 50-51, 88 S.Ct. 697; Albertson, supra, 382 U.S. at 78-79, 86 S.Ct. 194. See also Byers, supra, 402 U.S. at 433-434, 91 S.Ct. 1535 (plurality), 471-472 (Brennan, X, dissenting) ; Grosso, supra, 390 U.S. at 72, 88 S.Ct. 709 (Brennan, .1., concurring). It comes too easy to say that because Sullivan was decided forty-five years ago it is no longer an effective precedent. This overlooks the fact that, by continuously distinguishing and referring to Sullivan, tire Court has maintained its vitality.
. Since the privilege is applicable only if the specific response would come within the scope of protection and the witness is not the ultimate arbiter of whether this is the situation, a decision on the propriety of invoking it cannot be made unless the question has been put and the witness has asserted his basis for refusal to answer.
C. McCormick, Evidence § 136, at 289 (2d ed. 1972) (footnote omitted).
. Sullivan upheld a conviction for failure to file an income tax return on the. theory that “[i]f the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all.” 274 U.S., at 263, 47 S.Ct. at 607. That declaration was based on the view, first, that a self-incrimination claim against every question on the tax return, or based on the mere submission of the return, would be virtually frivolous, and second, that to honor the claim of privilege not asserted at the time the return was due would make the taxpayer rather than a tribunal the final arbiter of the merits of the claim.
Albertson v. SACB, 382 U.S. 70, 79, 86 S.C. 194, 199, 15 L.Ed.2d 65 (1965).
. If Congress feels that this decision might jeopardize revenue collection, it might provide use immunity for information contained in tax returns. However, we do not feel that a judicial decision is the appropriate method for altering the complex and interrelated tax systems of this country. See Byers, supra, 402 U.S. at 442-443, 91 S.Ct. 1535 (Harlan, J., concurring) ; Marchetti, supra, 390 U.S. at 59-60, 88 S.Ct. 697; 86 Harv.L.Rev. 914, 919 n. 25 (1973).