Tax Problem Attorney Blog

A physician in Kentucky was arrested and charged last month with four counts of tax fraud pursuant to Internal Revenue Code Section 7201, and two counts of failure to file tax returns in violation of IRC section 7203. According to the indictment Dr. Werner Grentz had failed to file income tax returns since 1999. There is a common myth that it is better not to file a tax return at all than to file a false tax return. Like most myths there is some truth to this one. The willful failure to file a tax return is a misdemeanor punishable by "only" one year in jail, and a fine of not more than $100,000. IRC Section 7203. On the other hand tax evasion a/k/a/ tax fraud is a felony, and the resulting imprisonment can run up to 5 years, plus a fine of not more than $100,000. IRC Section 7201.

One advantage of a misdemeanor over a felony conviction is that it won't result in possible deportation for green card holders. We talked about this tax problem in a past blog post. Still, as Wesley Snipes found out, three years of failing to file a tax return can result in three years in prison.

Any "advantages" should not be used as an excuse not to file a tax return when there is some uncertainty about the correct position to take on a return. It is much better to file a return with missing or even incorrect information (provided that appropriate disclosures are made) than not to file a return.

In addition, in some instances the failure to file a tax return can be charged as tax evasion. That's what happened to Dr. Grentz. The indictments spells out that he was being charged with failure to file for two of the years, but tax evasion for four different years. In order to be convicted of tax evasion it is necessary for the IRS to show an "affirmative act", not merely an omission to do something like the failure to file a tax return. According to the indictment in addition to not filing his tax returns he engaged in the following affirmative acts:

• He filed Form W-4 claiming that he was exempt from income tax; and


• He set up bank accounts in the name of two corporations (which the IRS referred to by the pejorative term "nominees"), and deposited some of his compensation into bank accounts set up in the corporate names.

Those two actions were enough to cause a shift from charges of not filing a tax return to tax evasion.

Continue reading "Criminal Tax: Tax Fraud and Tax Evasion vs. Failure to File Tax Returns " »

The criminal tax conviction of a New Jersey couple (the DeMuros) for failure to pay payroll taxes to the IRS was affirmed by the Third Circuit Court of Appeals, United States v. DeMuro (3d Cir. 2012). The willful failure to pay payroll taxes is a violation Internal Revenue Code (IRC) Section 7202, and is punishable by up to five years in prison. Of course the willful failure by a responsible officer to pay trust fund taxes is also a violation of IRC Section 6672, and will result in a trust fund recovery penalty (TFRP) being assessed against the responsible officers. Obviously the criminal tax conviction is much more serious than the assessment of the trust fund recovery penalty.

The DeMuros failed to pay trust fund taxes for their business of more than $546,000 over 21 calendar quarters from 2002 to 2008, resulting in a 21 count indictment. While that is a lot of money it is easy to see how a failing business could wind up in that situation since it amounts to about $25,000 per quarter, and was spread over a seven year period. A large sum, but not shocking, at least not to tax lawyers, and other tax professionals who see this type of underpayment on a semi-regular basis.

The DeMuros tried to argue that their failure to pay wasn't willful, but to no avail. The IRS pointed to evidence that during the same time period the DeMuros spent over $5 million dollars from their personal and corporate bank accounts. Apparently several witnesses testified at trial about the DeMuros "luxury vacations, nice homes, and [Mrs. DeMuros] substantial home shopping network expenditures," and the DeMuros argued on appeal that the admission of this evidence was "prejudicial." The response from the Third Circuit was: "[w]hile we are sensitive to the effect that evidence of a defendant's liberal spending habits can have on a jury, particularly in these lean economic times, the evidence admitted in this case, i.e. evidence of vacations, jewelry, cars and parties, was not so inflammatory as to carry a great risk of prejudice."

Mrs. DeMuro argued at trial that she was not responsible for paying the payroll taxes. The IRS response was to show that that Mrs. DeMuro had the authority to fire employees and signatory authority over corporate bank accounts.

Interestingly the IRS also called as a witness the Enrolled Agent that represented the DeMuros before the IRS with regard to the payroll tax problems. The Enrolled Agent testified that he had reviewed two appeals that the DeMuros had filed, and that in his opinion they were meritless, and therefore should have been withdrawn. Advice which apparently the DeMuros didn't follow, and the IRS relied on this as evidence of bad faith on the part of the DeMuros.

Continue reading "Tax Fraud: Criminal Tax Conviction For Failure to Pay Payroll Taxes Upheld" »

Our tax litigation attorneys are often asked whether failing to report income is tax fraud. We explain that there are various "badges of tax fraud," and a simple omission of income may not be tax fraud. A recent Tax Court case illustrates that when coupled with other badges of tax fraud even a small tax due can result in a 75% civil tax fraud penalty.

In the case of Porch v. Commissioner (March 2012) Porch underwent a tax audit by the IRS for the years 2005 and 2006. At the audit Mr. Porch produced a Form 1099 and 13 unnumbered invoices which roughly totaled the gross receipts reported on the 2005 tax return. Porch did not provide his bank statements to the auditor at that point even though they had been requested. At the second meeting he furnished some, but not all of the requested bank statements. Ultimately the IRS summonsed the statements from the bank, at which point the auditor figured out that business income had been underreported by about $36,000 and $48,000 for 2005 and 2006, respectively. In addition, it turned out that Porch failed to report the gain on the sale of a house, and capital gains from the sale of securities. The tax due, however, was relatively small; $8,392 and $4,471 for 2005 and 2006, respectively.

In determining that the IRS had proven that Porch had committed tax fraud the Tax Court found the following badges of tax fraud:

• Understated Income
• Inadequate Records
• Implausible or Inconsistent Explanations of Behavior
• Failure to Cooperate with IRS
• Dealing in Cash
• Engaging in a Pattern of Behavior That Indicates an Intent to Mislead

A few of these badges of tax fraud were the most egregious. When Porch went to the tax audit he attempted to mislead the agent by presenting documentation which suggested the amount reported was accurate when in fact he knew that was not the case. The Tax Court was also not pleased with Porch's testimony at trial. On their 2005 tax return Porch and his wife reported adjusted gross income of around $11,000, and they deducted a similar amount for mortgage interest and taxes Porch answered in the affirmative when asked if he was the primary breadwinner in his family. Then, however, when asked how they supported themselves on the amounts set forth on the tax return he testified: "I mean it was rough. My wife, my friends, Lomax. You know, people helped me out. I mean, when I couldn't make ends meet, you know, I prayed about it." The judge referred to this under the heading of Implausible or Inconsistent Explanations of Behavior.

In the view of our tax litigation attorneys had Porch not been caught in several apparently dishonest statements perhaps he could have avoided the tax fraud penalty.

Continue reading "Tax Fraud: Even a Small Tax Deficiency Can Result in a Civil Tax Fraud Penalty" »

The failure to file a Foreign Bank Account Report TD F 90-22.1 (FBAR) for an offshore bank account has led to the seizure of an Alaska plastic surgeon's $4.6 million dollar account at a Seattle branch of Bank of America. According to the complaint filed in District Court Alaska plastic surgeon Michael Brandner was involved in a contested divorce proceeding with his wife, and decided to hide around $4.6 million from her by depositing the funds in a foreign bank account in Panama held in the name of a nominee offshore company. The complaint alleges that he drove the money from Alaska to Panama in the form of several cashier's checks. He was assisted in the transaction by an individual he met in Panama.

As luck would have it the person who Brandner sought assistance from got caught up in an investigation into a totally unrelated stock fraud scheme, and began cooperating with the government. Reading between the lines here it seems that the so-called cooperating witness spilled the beans on Brandner in order to try and get some leniency in whatever mess he was involved in. The cooperating witness told the government that he had advised Brandner of the obligation to file an FBAR reporting for the offshore Panamanian account on at least two occasions.

The cooperating witness also advised Brandner that a new tax treaty with Panama might compromise the secrecy of his offshore account. Brandner then inquired if there was any other place he could hide the Panamanian funds. With the assistance of the cooperating witness created an offshore entity which then opened up an account at Bank of America held in the name of the foreign LLC. Homeland Security Investigations (HSI) then promptly seized the account in a civil in rem forfeiture action.

There are a number of lessons to be learned other than don't try and cheat your wife in a divorce action. Clients always ask our tax litigation attorneys variations of the question: "How is the IRS going to find out about my offshore bank account." The truth is that the IRS may not find out, but the consequences can be dire if they do. In Brandner's case he had the bad luck to trust someone who later came to have his own problems (which were not even tax problems) with the authorities. Always keep in mind that if two people know a secret it's not a secret.

The case is also interesting since this is the first time to my knowledge the government has attempted to use the civil forfeiture statute to seize 100% of the proceeds of offshore funds for failure to file an FBAR. It certainly significantly ups the stakes; especially since there is nothing to stop the IRS from criminally prosecuting Brandner for willfully failing to file an FBAR, or criminal tax fraud and that may be the next episode in this drama.

As a technical matter it is not clear to our tax litigation lawyers that the IRS has the right to seize the proceeds of an account simply because no FBAR was filed. For more about the technicalities our tax attorneys plan on posting a separate item next week.

Continue reading "Failure to File FBAR (Foreign Bank Account Report) for Offshore Funds Leads to Seizure of Over 4.6 Million Dollars From Alaska Plastic Surgeon" »

Tax fraud penalties were recently upheld against Miguel Robleto of Oregon by the 9th circuit. These were civil tax fraud penalties pursuant to IRC Section 6663, not criminal tax evasion charges under IRC Section 7201. The difference is that although you can wind up paying a lot of money if civil tax fraud penalties are imposed at least you won't go to jail. In some cases the IRS brings criminal tax evasion charges, and then goes after you for the taxes, plus a civil tax fraud penalty. Although Mr. Robleto probably doesn't think so he may have been lucky that the IRS didn't bring criminal tax evasion charges.

The civil tax fraud penalty under IRC Section 6663 is 75% of the tax that is owed. The process of imposing the civil tax fraud penalty is a lengthy one. Generally the first step is a tax audit, sometimes followed by an appeal to the Internal Revenue Service's Appeals Division. Next the IRS will issue a notice of deficiency, after which the taxpayer may petition the United States Tax Court to decide his case. In order for the Tax Court to uphold the fraud penalty it must find clear and convincing evidence of tax fraud. That's just what happened in Mr. Robleto's case.

Mr. Robleto was a small business owner, and under the auspices of the Oregon DMV charged non-English speakers a fee for administering Oregon drivers' license exams. Although the Tax Court determined, and Mr. Robleto pretty much admitted, that he failed to report over $300,000 spread over four years his excuse was that he had never operated a business before, that he was overwhelmed by all of the customers he had, that he was totally inept in handling the financial aspects of his business, that he couldn't even pay his utility bills on time, that he had unopened envelopes of cash lying around his home, and that the filing of his incorrect income tax returns was at worst grossly negligent, but not fraudulent.

The Tax Court didn't buy it. Instead the Tax Court looked at various so-called badges of fraud including inadequate books and records, concealment of ownership of assets, cash transactions and cash hoarding. As the Tax Court so subtly put it:

Dealing in large amounts of cash and not keeping any records thereof often go hand in hand with intentional underreporting of income and taxes. Noteworthy are [Robleto's] placement of assets in nominee names and [his] lack of cooperation.

Robleto probably wasn't helped by the fact that he had a safe in his house with almost $200,000 of cash contained in it, or that he had a side business of preparing tax returns. He hired an accountant to prepare his own tax returns, but neglected to tell the accountant about the income from the preparation of the tax returns.

Continue reading "Tax Fraud Penalties Upheld First By Tax Court, Then by Ninth Circuit" »

Recently the Supreme Court held in Kawashima v. Holder (Feb. 21, 2012) that filing a false tax return in violation of IRC Section 7206(1) as well as other criminal tax offenses are aggravated felonies which can result in deportation of a resident alien. Just over two years ago we blogged about the 9th Circuit decision in Kawashima which came to the same conclusion. The Supreme Court has now upheld that decision.

To review the background, Mr. and Mrs. Kawashima were legal residents of the United States having moved to Los Angeles from Japan in 1984. According to an article in the Los Angeles Times they opened several sushi restaurants in the West San Fernando Valley area of Southern California. They were accused of violating various criminal tax laws, and in 1997 Mr. Kawashima pled guilty to a single count of violating Internal Revenue Code (IRC) Section 7206(1) (filing a false tax return). Mrs. Kawashima pled guilty to IRC Section 7206(2) (aiding and assisting in the filing of a false tax return). The tax loss was around $245,000. This would have included interest and penalties so the actual tax would have been much lower. It is possible that the Kawashimas pled guilty to charges under IRC Section 7206 to avoid the IRS bringing tax evasion charges under IRC Section 7201. Tax evasion carries a maximum penalty of 5 years, and a $250,000 fine; whereas filing a false tax return "only" has a penalty of $100,000 and 3 years in prison.

Neither the 9th Circuit opinion, nor the Supreme Court opinion stated whether they served any jail time, but according to the Los Angeles Times they repaid the full amount due to the IRS. The Kawashimas probably assumed that their tax problems ended there, but in 2001 the Immigration and Naturalization Service (INS), as it was then known, brought removal proceedings, against the Kawashimas seeking their deportation alleging that they had committed an "aggravated felony." These proceedings were brought pursuant to 8 USC § 1227(a)(2)(A)(iii) (stating that "[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable"). An aggravated felony is defined in 8 USC Section 1101(a)(43)M)(i) as any offense that "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000."

The Kawashimas argued that filing a false tax return was not an aggravated felony. They relied on a related section of the law which specifically states that the commission of tax fraud pursuant to IRC Section 7201 is an offense which may lead to deportation. From that the Kawashimas criminal tax lawyers concluded that Congress intended that the only tax crime which would qualify for deportation is tax fraud, and not any other lesser tax crime.

Unfortunately for the Kawashimas in a divided 6-3 opinion the Supreme Court disagreed, clearing the way for the Kawashimas deportation. In her dissent, Justice Ginsburg pointed out that as a policy matter the majority made a bad choice because it would discourage immigrants from pleading guilty to tax crimes since in addition to any jail time they would be exposed to being deported.

In our view Justice Ginsburg hit the nail on the head, and criminal tax lawyers will need to advise their alien clients of this distinct possibility as one of the many factors to take into account when deciding whether or not to plead guilty to any tax crime. The concern for FBAR (foreign bank account report) non-filers is that without regard to whether or not failure to file an FBAR is a deportable offense individuals who do not file FBARs generally have filed false tax returns by checking the "no box" on Schedule B signifying they don't have a foreign bank account when in fact they do.

Continue reading "FBAR Non-Filers Beware: Either Tax Fraud OR Filing a False Tax Return Can Result in Deportation" »

Last month, while most people were preparing their Christmas lists, Louis Alba, a New York contractor, plead guilty to criminal tax charges of failing to pay over to IRS employment taxes withheld from employee wages in the amount of almost $780,000 over approximately six years. Failure to pay over payroll taxes is considered a felony under Internal Revenue Code (IRC) Section 7202. It is punishable by up to five years in jail, and a fine of up to $250,000.

In the current economic environment business owners who are strapped for cash sometimes decide to "borrow" from the IRS by not paying the payroll taxes. The theory is that if cash is tight, and the vendors aren't paid there will be no more merchandise to sell, and therefore the business will go under quickly. The same with the landlord; don't pay the rent, and one can expect an eviction notice in short order. The IRS on the other hand moves slowly, and the temptation is to believe that if you have another 6 months or so business will turn around, and the IRS can be paid back.

Unfortunately in many cases that doesn't happen. The IRS doesn't look on this as borrowing; it views the failure to pay payroll taxes as stealing. Even if criminal tax charges are not brought, so-called responsible officers who fail to pay over corporate payroll taxes can be held personally liable under IRC Section 6671. More and more, however, the IRS is bringing criminal tax fraud charges. For the record persons convicted of tax crimes still must pay the taxes. It's not one or the other.

Continue reading "Failure to Pay Payroll Taxes Leads to Criminal Tax Charges" »

The IRS has filed felony criminal tax charges pursuant to Internal Revenue Code Section 7202 for willful failure to collect, truthfully account for and pay over trust fund taxes. This is yet another in a series of criminal tax charges being brought against responsible officers who haven't paid over corporate trust fund taxes. In most situations the IRS proceeds against responsible officers who willfully fail to pay corporate trust fund taxes, by assessing the tax directly against the individual under Internal Revenue Code Section 6672. This is generally referred to as the trust fund recovery penalty. Sometimes the IRS goes further and brings criminal tax charges.

In this case the defendant is a New York CPA who, according to the information filed in U.S. District Court, failed to pay payroll taxes to the IRS for three years running. Our tax lawyers found this case interesting because the amount of unpaid trust fund taxes was not terribly large. The total the IRS alleged as unpaid was approximately $108,000, fairly small potatoes, as payroll tax cases tend to go.

I thought it was important to blog about this case because clients sometimes assume that the relatively small size of their tax problem will insulate them against criminal tax liability. While that is generally accurate, as this case illustrates, not always.

Continue reading "Felony Criminal Tax Charges Filed Against New York CPA for Non-Payment of Trust Fund Taxes" »

United States v. Quinn (D. KS 2011) is one of several recent felony tax prosecutions, not for tax evasion, but for violation of Internal Revenue Code Section 7202. IRC Section 7202 makes it a felony to willfully fail to collect, account for, or pay over any tax due. In this case Ms. Quinn failed to pay payroll taxes for 7 quarters between 2003 and 2005. She finally got around to paying them in 2010, apparently after the IRS had filed criminal tax charges against her. Ms. Quinn challenged the finding that she failed to pay employment and individual tax and argued that since she had subsequently paid the tax due the charges should be dismissed.

The court wrote in its opinion that a person has failed to pay taxes if they have not paid the amount due as of the due date, regardless of whether the taxpayer has subsequently paid. In Ms. Quinn's case, she had recently paid the amounts due but this was not sufficient for the court to find her not guilty.

This does not mean that late payment of taxes will never prevent a criminal tax prosecution, and those who have not paid their taxes should seriously consider taking care of a tax problem before it turns into a criminal tax problem. Had Ms. Quinn gotten around to making full payment, or indeed even made good faith installment payments much earlier there is a chance that the case would never have gotten as far as it did.

Continue reading "Felony Criminal Tax Prosecution Goes Forward" »

Until recently even some well-informed tax attorneys assumed that short of disclosure under the Foreign Account Tax Compliance Act (FATCA) in 2013, the IRS would have a difficult time getting information from Swiss banks without litigation. As a result some owners of Swiss financial accounts assumed that they could avoid disclosure to the IRS by closing their offshore account prior to 2013. While there are various treaties which require Swiss banks to turn over account information with regard to individuals who have committed tax fraud or tax evasion, in the past this has been interpreted as requiring the IRS to provide among other things the name of the taxpayer it was investigating. Apparently not any more!

In what appears to be the final nail in the coffin of alleged Swiss Bank secrecy, a committee of the upper house of the Swiss Parliament recommended that the upper house approve a proposed addendum to the June 2010 ratification resolution on the 2009 protocol to "clarify" that so called nameless, behavioral-pattern based requests are allowed under the 1996 double taxation treaty with the U.S.

In a related development on November 16th the Swiss Federal Council approved an amendment to the ordinance implementing the Swiss-U.S. double taxation treaty to provide notice to U.S. clients of Swiss banks who are the subject of so-called behavioral-pattern based administrative assistance requests from the U.S. Notice will be provided by publishing the U.S. administrative request in the Federal Gazette. Unfortunately the Federal Gazette is not published in English, and the Swiss Federal Tax Authority (SFTA) has been tasked with the job of alerting the U.S. media.

So what are the requirements of a nameless behavioral-pattern based request?

1. It must indicate why the requested information is necessary and relevant;
2. It must give a detailed description of the alleged behavioral pattern;
3. It must explain why it can be assumed that the person fitting the alleged behavioral pattern has not fulfilled his legal obligation; and
4. It must show a credible act of active, fraudulent behavior by the bank, or its employees.

It is not difficult to see the IRS putting together a number of these requests to find the names of previously unknown taxpayers, and it may well explain the recent announcement by Credit Suisse (we wrote about this tax problem here) that it has been required by the SFTA to turn over the names of some of its clients to the IRS.

Continue reading "Swiss Bank Account Holders of Exposure for Tax Fraud and Failure to File FBARs Is Greater Than Ever" »

William H. Nurick, age 76, was convicted of tax evasion based on evidence he evaded a tax liability for one year of $157,000. In 2000 Nurick filed an amended 1995 income tax return admitting a $106,542 tax liability. He then attempted to conceal his offshore financial assets from the IRS by transferring $133,000 from an offshore bank account to a third party's offshore bank account, and then "borrowing" the funds back from the same party, and having that person file a trust deed against his real estate with the apparent purpose of making it appear that it had no equity. He then proceeded to file a false Form 433 with the IRS in support of an offer in compromise (OIC) which among other things failed to list his vehicle, or his offshore Costa Rican bank account with a balance of $200,000.

The IRS financial statement also underreported his income. The case is interesting for several reasons. One there is a perception that the IRS does not prosecute seniors. It does. There is also a belief that if you file an accurate tax return that's the end of it. Not necessarily. There is a separate tax crime known as the evasion of payment. It too is a felony. Nurick faces up to 5 years in prison and a $250,000 fine.

Continue reading "California Man Convicted of Tax Evasion Based in Part on a False Offer in Compromise (OIC)" »

According to a report in the Swiss newspaper Tages-Anzeiger the Swiss are poised to send the names of thousands of potential tax evaders who have Swiss Bank accounts over to the IRS, and/or the Department of Justice. The data files are, according to the unconfirmed report, due to begin coming over later in October. The report goes on to speculate that the banks on the list include Credit Suisse, Julius Bär, Zürich Cantonal Bank, Basel Cantonal Bank and Wegelin. These names shouldn't come as any great surprise because it appears that the IRS has been actively investigating them for some time.

Whether or not the report turns out to be true is unknown. However, if it is, it leaves very little time for U.S. persons who have offshore bank accounts at these Swiss banks to make a voluntary disclosure to avoid a criminal tax prosecution for FBAR violations, tax fraud, or other crimes.

U.S. persons who have offshore financial accounts are required to file report to the IRS on Form TD F 90-22.1, Report of Foreign Bank Account (FBAR) on an annual basis. Failure to do so can result in jail time, or ruinous civil penalties.

Continue reading "Swiss Banks to Turn Over Possible Tax Evaders to IRS" »

A "tax attorney's" conviction for aiding and abetting tax evasion based on his provision of advice to the individual convicted of evading taxes and the Internal Revenue Service's ("IRS") testimony that an underpayment of $737,436 resulted. ("Tax attorney" is in quotes since although the attorney in question gave advice about how to commit tax fraud I am not sure that makes him a tax attorney). The District Court sentenced the attorney to 30 months in prison and 3 years of supervised release. While this seems like a light sentence don't forget that the tax attorney's license to practice will most likely be revoked as a consequence of this conviction.

The tax attorney, Barry Jewell, suggested to his client, Carl Evans, a scheme by which a fictitious company agreed to fund the client's litigation in exchange for 100% of amounts awarded over $250,000 as a result of the litigation. No such offer existed and Evans funded the litigation himself, but Jewell provided Evans a fictitious letter making the offer, on the basis of which Evans's accountant innocently prepared his tax return. With the aid of Jewell, Evans created a new company, forged documents to backdate its existence, and used it to hide the income exceeding $250,000 that purportedly went to the company that fictitiously funded his litigation.

As a part of his appeal, Jewell contended that there was insufficient evidence to find him guilty of aiding and abetting tax evasions. The appellate court disagreed. Evans testified at the trial that Jewell concocted the above scheme for the purpose of Evans's tax evasion and the IRS testified that a tax underpayment of over $700,000 resulted. The appellate court ruled that these facts were sufficient for a jury to find that Jewell aided and abetted tax evasion and affirmed the lower court's conviction.

Continue reading "Tax Lawyer Convicted of Aiding and Abetting Tax Evasion " »

Criminal tax charges were recently upheld by the Sixth Circuit Court of Appeals against an individual who withheld payroll taxes but failed to pay those amounts over to the Internal Revenue Service ("IRS"). The defendant had been convicted of fifteen counts of Failure to Account for and Pay Over Withholding and FICA Taxes, in violation of 26 U.S.C. § 7202, and three counts of Making and Causing the Making of a False Claim for a Tax Refund, in violation of 18 U.S.C. § 287. The lower court sentenced the defendant in the case to 22 months in prison and 36 months of supervised release and ordered him to pay the amount owed plus penalties.

The defendant in the case, Richard Blanchard, did not pay trust fund taxes for approximately 6 years despite withholding taxes from his employees. The case started out as a civil tax audit, but then it became a criminal tax case. Blanchard appealed the decision of the district court, stating that the government failed to prove that he was financially able to pay over the employment tax and that the government must do so in order to show that his failure to pay violated the relevant statute. The appellate court found not only that the government did not need to prove that Blanchard was able to pay the tax, but also that Blanchard's inability to pay that tax would not even constitute a defense to the government's accusations. The court cited previous cases and stated that every individual must conduct his financial affairs in such a way that he is able to pay his tax liability when it becomes due. Thus, Blanchard's conviction and sentence of 22 months plus 36 subsequent months of supervised release were affirmed.

The case is disturbing to the extent that it brings to mind the concept of debtors prison. Business owners need to understand that failure to pay withheld tax over to the IRS may result in criminal tax fraud charges as well as civil tax penalties.

Continue reading "Lack of Funds Not a Defense to Criminal Tax Fraud Charges" »

The Department of Justice (DOJ) and Internal Revenue Service (IRS) announced last week the indictment of an HSBC India client on four counts of filing false tax returns and four counts of failure to file a Foreign Bank Account Report, form TD F 90-22.1 (FBAR). According to the press release each false tax return charge can result in a penalty of three years in prison and a $250,000 fine, and each failure to file an FBAR can result in 10 years in prison and a $500,000 fine. The press release is further evidence of the hardline positions that the IRS continues to take in FBAR cases. The maximum criminal penalty for willful failure to file an FBAR is "only" $250,000 and a five year jail term, under 31 USC 5322(a). However, under 31 USC 5322(b) if the willful failure to file an FBAR occurs "while violating another law of the United States or as part of a pattern of any illegal activity involving more than $ 100,000 in a 12-month period" that ups the ante to 10 years and $500,0000. By referencing the 10 year jail term the IRS is sending a message that it will seek maximum prison time.

The indictment alleges Dr. Arvind Ahuja, a US citizen living in Wisconsin, transferred and maintained millions of dollars in accounts in India and the Bailiwick of Jersey (Jersey) through HSBC. Jersey is considered to be a tax haven jurisdiction, meaning its laws are intended to conceal financial information from authorities in other countries. The indictment further alleges the balances of Dr. Ahuja's accounts ranged from $5 to $9 million and generated interest income that was unreported on his US tax returns.

The FBAR reporting requirement applies to individuals with a financial interest in or signature authority over foreign bank accounts if the aggregate value of those accounts exceeded $10,000 on any one day. The failure to file an FBAR is a charge independent of the failure to report taxable income. Foreign account holders with past unreported taxable income or undisclosed foreign accounts may make a voluntary disclosure under the IRS's Offshore Voluntary Disclosure Initiative (OVDI) and avoid or decrease penalties. The OVDI is open until August 31, 2011 and certain individuals may be entitled to an extension.

Continue reading "HSBC India Foreign Bank Account Client Indicted on FBAR (Foreign Bank Account) and False Tax Return Charges" »