Tax violations.

AuthorBenes, Keith J.
PositionThirteenth Survey of White Collar Crime

    This Article outlines the elements, defenses, and sentencing consequences of various criminal tax violations under the major United States Internal Revenue Code ("I.R.C.") sections, [subsections] 7201, 7202, 7203, 7206, and 7212(a). Section II of the Article examines the policies and procedures of Internal Revenue Service ("IRS") investigations, and the applicable punishments set out in the Federal Sentencing Guidelines. Section II also addresses the basic elements and defenses to the crimes of: tax evasion under [sections] 7201; failure to collect tax in violation of [sections] 7202; willful failure to file taxes under [sections] 7203; "tax perjury" and "aiding and assisting" tax fraud under [sections] 7206; and interference with the administration of internal revenue laws under [sections] 7212(a). Lastly, Section III details criminal investigations of conspiracy to violate the tax laws under the defraud clause of 18 U.S.C. [sections] 371.

  2. CRIMINAL INVESTIGATIONS UNDER I.R.C. SECTIONS 7201, 7202, 7203, 7206, AND 7212(a)

    Part A of this section examines the policies and procedures of IRS investigations, the role of counsel in criminal tax cases, and the statute of limitations for I.R.C. violations. Part B explains the applicable punishments set out in the Federal Sentencing Guidelines and various possible enhancements. Parts C through G of this Section address the basic elements of and defenses to: tax evasion; failure to collect tax; failure to file taxes; "tax perjury" and "aiding and assisting" tax fraud; and interference with the administration of internal revenue laws.

    1. Policies and Procedures of IRS Investigations

      1. Purposes of IRS Investigations

        Criminal tax investigations serve two purposes as set forth in the Internal Revenue Manual: (1) to enforce the tax laws; and (2) to encourage voluntary compliance.(1) To achieve maximum deterrence, the IRS's Criminal Investigation Division ("CID") focuses on individuals participating in illicit activities involving sophisticated criminal schemes, and on high-dollar financial transactions.(2) To increase deterrence, the IRS also "may be more likely to press a case involving a ... prominent taxpayer than a relatively obscure person."(3) As a result few agents remain available to audit returns among the general population, thereby reducing the percentage of total returns audited.(4) The IRS's focus on prominent individuals and illicit activities, however, may be inconsistent with enhancing voluntary compliance.(5)

      2. Policies

        CID special agents shoulder responsibility for investigating alleged criminal violations under the I.R.C. and related provisions of Title 18 of the United States Code.(6) When a special agent receives a matter with criminal prosecution potential or warranting further inquiry she conducts an administrative investigation.(7) Next, if the special agent believes the matter merits prosecution, she must prepare a special agent's report ("SAR") explaining the details of the investigation, its results, and the agent's recommendations.(8) Finally, she must refer the matter to the Department of Justice (DOJ), Tax Division, or, where authorized, directly to the U.S. Attorneys for the jurisdictions where venue most appropriately lies.(9) Referring the matter to the Tax Division terminates the CID's authority to employ the administrative investigation process.(10)

        Under the Assistant Attorney General's direction, the Tax Division has authority to authorize prosecution in criminal tax cases.(11) In addition, the Tax Division supports and coordinates tax litigation.(12) Once authorized by the Tax Division, U.S. Attorneys assume responsibility for litigating criminal tax cases.(13)

      3. Constitutional Considerations

        a. Notice/Due Process Requirements

        Standard procedure in investigative proceedings includes a surprise visit to the taxpayer by the investigating special agent.(14) Occurring at the beginning of an investigation, the surprise interrogation is often when the taxpayer first learns of the criminal inquiry.(15) Upon the initial noncustodial contact with the taxpayer, the investigator identifies himself as a special agent of the IRS and advises the taxpayer that he is under criminal investigation.(16) While not constitutionally required,(17) IRS manual guidelines also mandate that special agents provide a Miranda-type warning to the taxpayer during this initial contact.(18) Evidence obtained in violation of the guidelines, however, is not automatically inadmissible.(19) In such a situation, courts consider whether the guideline violation shows bad faith on the part of the IRS agent.(20)

        b. Fifth Amendment Issues and Disclosure of Documents

        Special agents routinely employ their authority to issue administrative summonses to obtain a suspect taxpayer's books and records for use in investigations.(21) In response to the summons, the taxpayer may assert a Fifth Amendment privilege against self-incrimination if she can establish that the act of production constitutes a "substantial and real" risk of self-incrimination.(22) Thus, the Ninth Circuit has held that "[t]he self-incrimination clause of the Fifth Amendment applies in all instances where a taxpayer has reasonable cause to apprehend criminal prosecution, whether tax related or not."(23) Taxpayers must invoke the Fifth Amendment privilege on a question-by-question basis, rather than in blanket fashion.(24)

        Should the taxpayer elect not to assert her Fifth Amendment privilege and voluntarily disclose documents to the IRS, she may revoke her consent at any time.(25) In cases where a taxpayer initially grants consent and later revokes it, the IRS may only use information obtained during the period of taxpayer consent.(26)

      4. The Role of Counsel

        As soon as the taxpayer retains counsel, usually after the special agent's surprise visit, counsel should advise the taxpayer to refrain from all further communication with IRS representatives.(27) In addition, to initiate and facilitate communication with the special agent, counsel should obtain a power of attorney from the taxpayer.(28) Counsel should also determine what documents, if any, the taxpayer had voluntarily furnished to the special agent; and, advising the taxpayer to revoke her consent, promptly seek the return of such documents.(29)

        As a matter of strategy at this stage of investigation counsel must decide upon an appropriate level of cooperation with the IRS.(30) It is important to emphasize that, although cooperation may affect the conduct of the investigation or lessen the punishment after prosecution, in most cases it has little impact on whether an agent recommends prosecution.(31) If, after counsel conducts a thorough investigation, the evidence clearly reflects the taxpayer's innocence and the IRS appears unsure of its case, cooperation will likely facilitate a prompt termination of the investigation.(32) Conversely, if it cannot be determined with certainty that the taxpayer does not have criminal exposure, one commentator suggests that it is generally a more prudent choice for the taxpayer not to cooperate in any fashion and force the government to shoulder its burden of proof.(33)

      5. Statute of Limitations

        Crimes arising under the I.R.C. have a three year statute of limitations.(34) The I.R.C. delineates certain exceptions, however, which extend the limitations period to six years.(35) The five I.R.C. sections covered in this Article, [subsections] 7201,(36) 7202,(37) 7203,(38) 7206,(39) and 7212(a)(40) have all been held to fall under these exceptions. The statute of limitations begins to run on the date the taxpayer files the fraudulent document or on the date of the last affirmative act of evasion.(41) The government need only file a complaint within the limitations period to begin the criminal procedure.(42) The statute of limitations can be tolled for tax evasion purposes if the accused is a fugitive, is outside the United States,(43) or is involved in related enforcement proceedings.(44) These tolling provisions prevent a defendant from raising procedural matters to delay a tax violation proceeding beyond the statute of limitations period.

    2. Sanctions Under the Federal Sentencing Guidelines

      The Federal Sentencing Guidelines ("Guidelines") for tax violations set a base offense level corresponding to the amount of the tax loss.(45) Generally, tax loss equals the amount of taxes evaded by the taxpayer, excluding penalties or interest for the period in question.(46) A defendant's taxable income may be established by any means, including the "net worth" method, which demonstrates the change in the defendant's net worth during the fiscal year.(47) The following sections will delineate the sentencing guidelines for violations of [subsections] 7201, 7202, 7203, 7206, and 7212(a).

      1. Violations of I.R.C. Section 7201

        Defendants convicted under [sections] 7201 are sentenced in accordance with [sections] 2T1.1 of the Guidelines.(48) The base offense level is calculated from the tax table in [sections] 2T4.1 of the Guidelines and corresponds to the tax loss.(49) Alternatively, if no tax loss exists, the base offense level is six.(50)

        The Guidelines also provide for a number of possible penalty adjustments that apply to certain types of felonious conduct. For example, if the defendant failed to report or to correctly identify a criminal source of income exceeding $10,000 in any year, then the offense level increases by two.(51) If the adjusted offense level is less than twelve, then the offense level must be increased to twelve.(52) Where the court finds a defendant used sophisticated means to impede discovery of the existence or extent of the offense, the offense level is increased two levels.(53)

      2. Violations of I.R.C. Section 7202

        Defendants convicted under [sections] 7202 are sentenced in accordance with [sections] 2T1.6 of the Guidelines.(54) The base offense level is derived from the tax table in [sections]...

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