On Jan. 6, 2017, Janis Edwards, the owner of a professional employer organization, pleaded guilty to tax evasion arising from failing to pay over to the IRS between $3.5 million and $25 million in withholdings that her organization had collected from the paychecks of her clients’ employees. Professional employer organizations, often called “PEOs,” have presented the IRS and the DOJ with substantial employment-tax enforcement issues over the years. This is because PEOs and their owners are not employers and therefore do not technically have a duty to collect and pay over employment taxes. (I will reserve for another blog post any discussion of the impact of the Tax Increase Prevention Act of 2014 and the resulting Internal Revenue Code sections 3511 and 7705.) Normally, the DOJ would charge an employer who had committed the acts that Ms. Edwards admitted to committing with willful failure to collect or pay over employment taxes instead of tax evasion. Because of the wrinkle that the PEO presented, though, the DOJ had to find a different charge, in this case tax evasion. The maximum penalty for tax evasion is five years in prison. The court has not yet set a sentencing date.
Coinbase, one of the largest digital currency exchange companies in the world, will likely be asked to provide the Internal Revenue Service (IRS) with transactional data and other information on all U.S. customers who used its services over a three-year period. Using what is known as a “John Doe” summons, the IRS has formally requested permission from a federal court to seek extensive information on all “United States persons who, at any time during the period January 1, 2013, through December 31, 2015, conducted transactions in a convertible virtual currency” through Coinbase.
If the summons is served as approved by a federal court this week, Coinbase will face the substantial burden of producing a long list of customer-related and other records. However, this data production will only be the first step in a process that may ultimately impact accountholders whose information is turned over to the IRS. The accountholders (corporate and individual) may become subject to IRS audits and potentially fines if there are any unpaid taxes related to their virtual currency transactions.
While the action states that it is civil in nature, the IRS is clearly seeking customer information to open separate investigations of potential tax avoidance, which could become criminal cases in certain circumstances. The information that is collected in this investigation may also be used in other investigations undertaken by IRS itself or any other part of the U.S. Department of the Treasury, including the Office of Foreign Assets Control (OFAC) and the Financial Crimes Enforcement Network (FinCEN). Other digital currency exchangers and their customers could also become targets in similar actions, either directly or potentially as a result of information collected from this summons, or in follow-on investigations. Even noncustomer receivers of virtual currency could become the subjects of investigation. Continue Reading
On Friday, Sept. 30, 2016, the Department of Defense, the General Services Administration and the National Aeronautics and Space Administration issued a Final Rule aimed at blocking tax evaders and convicted felons from receiving federal contracts. The Rule, which was unchanged from the version first proposed last December, significantly expands the circumstances under which contractors will be barred from awards due to tax delinquencies.
Although the Federal Acquisition Regulation (FAR) has historically required prospective contractors to make limited certifications regarding their tax payment history, the new Rule broadens that policy by extending it to virtually all federal government contracts. The principal provision of the Final Rule – the new contract clause found at FAR 52.209-11, Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction Under Any Federal Law – differs from these previous policies in three key respects. First, unlike existing provisions, which require the disclosure only of federal tax delinquencies exceeding $3,500 in the preceding three years, the Final Rule requires the disclosure of any existing federal tax delinquency not currently in dispute. Second, where existing provisions have applied only to contracts whose value exceeded a certain monetary threshold (generally $150,000), the new provisions apply to all contracts. Finally, and most importantly, in contrast to the existing rules, which afforded contracting officials discretion over whether to disqualify contractors for tax delinquencies, the Final Rule expressly prohibits contracting with tax delinquents except under very narrow circumstances.
Importantly, federal tax liabilities that are the subject of judicial or administrative challenge do not constitute delinquencies for the purposes of the Rule.
On September 23, 2016, Robert Fackler, the husband and now co-defendant of former Tax Court Judge Diane Kroupa, pleaded guilty to corruptly impeding the IRS, a felony that carries a maximum three-year prison sentence. It is unclear whether the plea agreement calls for Fackler to cooperate with the government’s prosecution of his wife. Considering that the indictment charged him with six felony counts, five or which will be dismissed under the plea agreement, chances are good that he has agreed to testify against his wife if she goes to trial. She now occupies the exceedingly uncomfortable sole defendant’s chair. The Minneapolis Star-Tribune has a good recitation of the facts of the case here.
On Aug. 30, 2016, the Treasury Department, the Federal Reserve, the FDIC, the National Credit Union Administration and the Office of the Comptroller of the Currency issued guidance to U.S. banks that hold correspondent accounts for foreign financial institutions. The Joint Fact Sheet on Foreign Correspondent Banking seeks to clarify U.S. banks’ obligations when hosting these accounts. Among other things, the fact sheet emphasizes that “Under existing U.S. regulations, there is no general requirement for U.S. depository institutions to conduct due diligence on an FFI’s [a foreign financial institution’s] customers. In determining the appropriate level of due diligence necessary for an FFI relationship, U.S. depository institutions should consider the extent to which information related to the FFI’s markets and types of customers is necessary to assess the risks posed by the relationship, satisfy the institution’s obligations to detect and report suspicious activity, and comply with U.S. economic sanctions.”
As we have noted before in this blog, “Any bank in the world that wishes to allow its customers to hold U.S. dollar-denominated accounts and conduct transactions in U.S. dollars must have access to the U.S. banking system. This requires foreign banks to open accounts at banks in the U.S., known as correspondent banks.” Any clarification of U.S. banks’ obligations in this area will be welcomed by both U.S. banks and their foreign correspondent banking customers.
On August 8, 2016, Tennessee State Rep. Joseph Armstrong (D-Tenn.) was convicted by a federal district court jury of filing a false federal income tax return, and acquitted of tax evasion and conspiracy. Armstrong’s conviction arose from an ingenious but morally dubious scheme to profit personally from a tax increase that he helped push through the legislature. Armstrong supported and voted in favor of a cigarette tax increase from 20 cents to 62 cents per pack. Cigarette wholesalers place tax stamps on packs to show that the taxes have been paid. Knowing that the stamps would increase in value from 20 cents to 62 cents, Armstrong got together with a wholesaler, hoarded the stamps, and resold them after the tax increase took effect for a 300 percent profit, or roughly $321,000. The jury convicted Armstrong of willfully filing a false tax return by failing to report this income.
The lesson from this scandal, unsurprisingly, is that the cover up is often worse than the crime. Armstrong’s tax stamp scheme was not illegal; it was only distasteful in the extreme. His attempt to cover it up by failing to report the income on his tax return, though, was a felony. He now faces a maximum of three years in prison and is being ejected from the Tennessee Legislature.
On July 13, 2016, in Dynamo Holdings Limited P’ship v. Comm’r, the U.S. Tax Court strongly defended the taxpayer’s use of computer-assisted review in a dispute with the IRS. In a 2014 decision in the same case, the Tax Court had already endorsed computer-assisted review, namely predictive coding, as a general matter. “Predictive coding is an expedited and efficient form of computer-assisted review that allows parties in litigation to avoid the time and costs associated with the traditional, manual review of large volumes of documents.” Dynamo Holdings, 143 T.C. 183 (2014). Read more >>
The “Restraining Excessive Seizure of Property through the Exploitation of Civil Asset Forfeiture Tools Act” (tortuously abbreviated as the RESPECT Act) (H.R. 5523) continues to make its way through Congress, with a markup session held on July 7, 2016. The bill follows an IRS change of policy in October 2014 to correct perceived abuses in the seizure of the proceeds of criminal structuring of currency transactions. It is a crime to structure currency transactions with the intention of preventing a financial institution from reporting the transaction to the Treasury. Since banks must file a Currency Transaction Report with Treasury’s FinCEN for currency transactions greater than $10,000, people sometimes conduct multiple sub-$10,000 transactions to evade this reporting. In such cases, in addition to criminal charges, the IRS often civilly seizes the structured funds with the intention of forfeiting them. Controversy arose over the fact that the IRS lawfully seized structured funds even when the funds were not the proceeds of some other crime. To be clear, structuring “clean” currency is no less illegal than structuring illegal-source currency. Still, many people thought that such seizures went too far.
To address this, the IRS announced in October 2014 that it “would no longer pursue the seizure and forfeiture of funds associated solely with ‘legal source’ structuring, unless there are exceptional circumstances justifying the seizure and forfeiture.” In June 2016, the IRS went further and “established a special procedure for people whose assets were involved in structuring to request a return of their forfeited property or funds.” Members of Congress apparently are uncomfortable with this being merely an internal IRS policy, and are seeking to give it the force of law.
Multiple news sources (for example, here and here) are reporting that the U.S. government is conducting an investigation into whether Goldman Sachs violated the so-called Bank Secrecy Act (real and less-Orwellian name: Currency and Foreign Transactions Reporting Act of 1970) by conducting a highly suspicious wire transfer and failing to file a Suspicious Activity Report with the U.S. Treasury.
The Bank Secrecy Act, among other things, requires financial institutions to file Suspicious Activity Reports with the Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”) when a customer’s transactions are, well, suspicious. Banks face serious penalties for failing to file Suspicious Activity Reports. Additionally, the electronically filed reports provide tips that often trigger IRS criminal investigations of the customers that engaged in the transactions. FinCEN closely guards the criteria for when a financial institution must file Suspicious Activity Reports to avoid tipping off would-be wrongdoers on how to avoid behaviors that might trigger the reports. Still, it’s not hard to see why the federal government might view the transaction at issue as suspicious. Continue Reading
On May 23, 2016, the U.S. Court of Appeals for the Second Circuit reversed a jury’s finding of civil fraud against Countrywide Home Loans and other lenders, finding that the government had failed to prove fraud in Countrywide’s sale of mortgages to Fannie Mae and Freddie Mac. Peter J. Henning wrote an excellent piece in the New York Times’ White Collar Watch pointing out just how difficult it can be to prove fraud. The Countrywide case, brought under the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA), showed that one person’s “brazen fraud,” as presiding District Court Judge Jed Rakoff called it, is another person’s merely distasteful intentional breach of contract. The Second Circuit took the latter viewpoint.
How does this relate to tax enforcement? If the burden of proving garden-variety fraud is high, the burden of proving tax fraud is higher still. To prove tax fraud, the government must prove not only that a taxpayer made a false statement but that the taxpayer understood the tax law well enough to know that he or she was violating it. In other words, there can be no conviction in the absence of an intentional violation of a known legal duty. This has been the law at least since the Supreme Court’s decision in the 1991 case of Cheek v. United States. Unlike what we learned in our high school civics classes, ignorance of the law is an excuse in the world of tax fraud.