Tax evasion can be shown when the following three elements are present:
- The existence of a tax deficiency
- An attempt to evade or defeat tax
What seemed like a minor transgression when filing your tax return could end up being a tax crime punishable by years in prison. The IRS Criminal Investigation Division (CI) pursues about 3,000 criminal prosecutions per year to provide a deterrent effect to all taxpayers. If you have been chosen as one of the taxpayers to be “made an example of”, you could face severe fines or time in jail in the name of increasing tax compliance by other taxpayers.
The criminal investigation process often begins when an auditor or collection agent detects possible tax fraud. The IRS can also be “tipped off” by the public—anyone can submit a 3949-A Information Referral form to the IRS that reports suspected tax law violations. Other law enforcement agencies can also reported suspicious activity to the IRS.
Special agents may then begin a preliminary investigation. A supervisor will evaluate the information to determine if further investigation is warranted. At least two layers of CI management must review the information before a criminal investigation can proceed.
The Bank Secrecy Act may require you to file a FinCEN 114, Report of Foreign Bank and Financial Accounts (FBAR), even if you are not a U.S. Citizen. The FBAR must be filed annually by all “United States Persons”, which includes U.S. citizens, U.S. residents, and certain entities. The FBAR must be filed if your total interest in foreign accounts exceeds $10,000 at any point during the calendar year.
FBAR Filing Requirements for Non-Citizens
The IRS has its own rules for determining if you are a resident for tax purposes. If you meet either the green card test or the substantial presence test, the IRS considers you a resident, and you must comply with all tax filing requirements, including filing an FBAR.
An abusive tax shelter is an investment scheme that attempts to reduce income tax without serving any other economic purpose. The value of income or assets is not changed, so the sole purpose of an abusive tax shelter is to avoid tax.
The IRS attempts to deter participations in abusive tax shelters through tax audits, summons enforcement, litigation and other methods. There is also an abusive tax shelter hotline, where anyone can anonymously provide information about abusive tax shelter transactions.
Analyzing an Abusive Tax Shelter
The idea of being sent to prison for making a mistake on your tax return may seem ridiculous — and also scary — to the average taxpayer. With so many regulations to follow that even IRS employees can become confused, how can a lay person with no tax expertise be charged criminally for messing up their taxes?
Actually, they cannot be charged criminally if an honest mistake was made. While tax fraud can results in both civil and criminal penalties, there is a higher standard of proof for criminal charges. The IRS must prove criminal tax fraud “beyond a reasonable doubt”, whereas a civl tax fraud penalty can be imposed if there is “clear and convincing evidence”.
The IRS Must Prove You Intended to Commit Tax Fraud
The IRS reported 2,672 convictions for criminal tax violations in the 2016 fiscal year. While criminal tax charges are not common, the penalties —which can include jail time — are severe enough to cause any taxpayer to be concerned.
Most criminal tax penalties can result in a five-year prison sentence and $100,000 fine. You can also be charged with civil penalties for the same violations, and you may have any professional licenses revoked.
Common Criminal Tax Violations
Whether you should consult with a tax lawyer depends on the specific facts relating to your tax audit. However, there are some circumstances where it is vital that you retain the services of a tax lawyer to make strategic decisions and negotiate with the IRS or state tax authority.
Types of Tax Audits
There are many different types of tax audits. You may be facing any of the following types of tax audits:
If you have an interest in an offshore bank account or another type of foreign financial account, you may be required to file a yearly report for the account with the Department of Treasury. The penalties for not filing Form FinCEN 114 are costly, and if you have been putting off disclosing your foreign bank accounts to the IRS, you should be aware of the risks you face by continuing to hide your offshore accounts.
There can be both criminal and civil penalties for failing to satisfy your Foreign Bank Account Reporting (FBAR) requirements. Criminal penalties can include up to 5 years in prison and a $250,000 fine. The willful failure to file FBAR is also a felony that can result in the loss of your right to vote, revocation of professional licenses for attorneys, doctors, and other professionals, and deportation of green card holders.