Part I of this Post, found here, discussed the background and holdings of United States v. Marinello, 839 F.3d 209 (2d Cir. 2016), cert. granted, No. 16-1144, 85 U.S.L.W. 3602, 2017 U.S. LEXIS 4267 (Jun. 27, 2017). This post focuses on the implications of the Second Circuit’s construction of the omnibus clause of section 7212(a) of the Internal Revenue Code and on the potential ways in which the Supreme Court might narrow that construction.
To recap, Marinello was charged and convicted with a felony, known as “tax obstruction” under section 7212(a) (corruptly obstructing or impeding the due administration of title 26).… Read More
Carlo Marinello ran a small business in upstate New York. He also ran into tax trouble.
Marinello was charged and convicted for the willful failure to file personal tax returns and corporate tax returns for his business over a series of years, which are misdemeanor charges under the Internal Revenue Code. See I.R.C. § 7203. The government also charged Marinello with a felony, known as “tax obstruction.” Under section 7212(a) of the Code, tax obstruction occurs in two situations:
- Under the first clause of the statute, someone commits a felony if he “corruptly or by force or threats of force (including any threatening letter or communication) endeavors to intimidate or impede any officer or employee of the United States acting in an official capacity under this title.” I.R.C.
… Read More
I had the opportunity to speak with the former Chief of Internal Revenue Service Criminal Investigation (CI), Victor Song, about the future of international tax enforcement. International enforcement has been a top priority for the IRS for many years, and Mr. Song has had a critical role in that effort. Mr. Song’s tenure with the IRS spanned 30 years. He joined in 1981 and became a special agent in 1983. He rose to the position of deputy chief of CI in 2007, was appointed CI chief in January 2010, and retired from CI in December 2011. Mr. Song then served as the Executive Vice President of Compliance and Advisor to the CEO for Samsung Electronics America; he currently runs Victor Song Consulting, concentrating on services for tax controversy, anti-money laundering, corporate compliance and internal investigations.… Read More
As we head into the New Year and look back on 2015, this blog reflects on one facet of the future of tax enforcement, at least in the near term. The trend in decreasing resources devoted to tax enforcement may erode widespread respect, and therefore compliance, with the tax code. One reason for this is because if people don’t believe that the tax code is fairly and uniformly enforced against tax cheats, they themselves will be more inclined to cheat.
Although this is presumably an obvious or intuitive point, the psychology behind it is perhaps more complex than simply observing that people are more inclined to cheat if they believe that they can get away with it.… Read More
We are looking forward to attending the American Bar Association (ABA)’s 2015 Criminal Tax Fraud and Tax Controversy Conference in Las Vegas, NV from December 9 to December 11, 2015 (this Wednesday through Friday). This event is the annual gathering of the criminal tax defense bar combined with the ABA’s Fifth Annual National Institute on Tax Controversy. This program brings together government representatives, judges, corporate counsel, and private practitioners engaged in all aspects of tax controversy, tax litigation, and criminal tax defense. Post & Schell is pleased to be a Bronze level sponsor of the conference, again.
I also am honored to be a panelist on the Criminal Tax Workshop during the afternoon of December 9; this is an annual panel involving private practitioners, federal prosecutors and former IRS agents that discusses strategies and techniques for handling sensitive civil examinations and criminal investigations, and defending a criminal prosecution.… Read More
Earlier this year, New York’s Department of Financial Services (“DFS”), the State’s banking and insurance regulator, announced that it was increasing and strengthening its enforcement efforts aimed at financial institutions’ anti-money laundering (“AML”) and Bank Secrecy Act (“BSA”) compliance deficiencies. The latest installment in the DFS’s crackdown on financial institutions came on November 5th, when the DFS and the Federal Reserve Bank of New York (the “New York Fed”) entered into an agreement with The Bank of Nova Scotia and its New York agency (collectively, the “Bank”), obligating the Bank to submit revised compliance programs for several key areas, including BSA/AML, Customer Due Diligence, and Suspicious Activity Monitoring and Reporting.… Read More
This entry resumes yesterday’s discussion of problems that can arise for a business dealing with a temporary staffing service, or “TSS,” that is violating the law; the discussion continues to draw on the case of Mr. Victor Thach, described in yesterday’s post, who was convicted and sentenced for criminal tax violations associated with his labor leasing agency. This blog discussed civil tax issues yesterday; today it addresses criminal tax and immigration law issues, and how the legal problems of a TSS can become the problems of its clients. This is part of the broader discussion regarding employment tax crime that will occur during a panel at the White Collar Practice Seminar of the Pennsylvania Association of Criminal Defense Attorneys (PACDL) this Thursday, November 12, at the Union League in Philadelphia.… Read More
Traditional companies can run into problems because of unscrupulous conduct by third-party companies enlisted to provide temporary or leased employees. We will discuss this issue in part, along with many others, during a panel on criminal tax enforcement at the White Collar Practice Seminar of the Pennsylvania Association of Criminal Defense Attorneys (PACDL) this Thursday, November 12, at the Union League in downtown Philadelphia. My co-panelist will be Nanette Davis, a Senior Trial Attorney for the Criminal Enforcement Section of the DOJ Tax Division in Washington, D.C., who has tried some of the largest tax fraud cases ever prosecuted; our moderator will be Jim Becker, a distinguished white collar defense attorney at the law firm of Buchanan Ingersoll & Rooney.… Read More
I am looking forward to speaking about sentencing and other post-trial issues in criminal tax cases on October 21, 2015 at the 2015 seminar on Emerging Ethical Issues in Tax Practice for the New Jersey Institute of Continuing Legal Education. This seminar, now in its fifth year, will be held at the Crowne Plaza in Fairfield, New Jersey from 4 pm to 8 pm. I will be joined by the seminar’s host, Charles E. Falk, who will discuss current ethical issues in tax cases, and Michael J. Sullivan, who will discuss selected issues presented by criminal tax cases prior to sentencing.… Read More
As illustrated by a recent case involving a doctor convicted at trial for subscribing to false tax returns and conspiring to defraud the IRS, practitioners can try to use the tax code’s complexity to their clients’ advantage at sentencing. In United States v. Hough, No. 14-12156 (11th Cir. Sept. 9, 2015), the Eleventh Circuit, after affirming the defendant’s convictions, reversed and remanded to the district court for further findings for the purposes of determining her sentence; the court’s sentencing discussion is the focus of this blog. Although on remand the defendant ultimately may receive the same sentence, Hough involves a technical discussion of tax regulations that rarely appears in opinions on sentencing in criminal tax cases.… Read More