Criminal Defense

If you are facing federal criminal tax charges, you need to understand how federal sentencing works and which factors affect it. In the federal justice system, judges have the ultimate say as to what the sentence will be. You need an experienced criminal tax attorney at your side that knows how to argue convincingly. Norman Spencer Law Group is here to help you anywhere in the country!

Our lawyers have decades of experience representing clients at all stages of federal criminal cases from investigation to trial and appeal. We provide this short guide so that you can familiarize yourself with how federal sentencing with respect to criminal tax cases works.

Federal Sentencing Guidelines

When a person charged with a criminal tax case is convicted after trial or pleads guilty to a tax crime, the next step is sentencing. Unlike state law, the federal court sentence process largely depends on the Federal Sentencing Guidelines that apply to all federal crimes.

Until the Supreme Court case of the United States v. Booker was decided in 2005, Federal sentencing Guidelines were required to be used by all federal trial courts in calculating and imposing federal criminal sentences.

However, the Supreme Court in Booker ruled that the Guidelines are now advisory, not mandatory.

When it comes to tax crimes, the Guidelines are strict, mandating imprisonment for essentially all tax crimes except some minor tax violations.

In general, the sentence under the Guidelines depends on the “tax loss”. The higher the “tax loss”, the higher is the sentence required under the Guidelines.

Base Offense Level

The amount of the tax loss determines what a base offense level is. Each base offense level has a range of sentences under Sentencing Tables. This principle applies to all federal crimes, not only tax crimes. As the tax loss increases, the base offense level increases and so does the corresponding sentencing range.

So, the base offense level is one of the most important numbers in federal sentencing, and the way to determine the offense level is to calculate the tax loss.

Other Factors Affecting Federal Criminal Tax Sentencing

 However, both the offense level and the sentence itself may vary, increasing and decreasing based on many other factors. These factors may include the other relevant conduct, various adjustments, and departure rules.

These and other factors are extremely important at sentencing. They may be crucial in the court’s decision to increase or decrease the ultimate sentence. Only a very skilled attorney, experienced in federal criminal law and knowledgeable in the Federal Sentencing Guidelines can be most effective at federal sentencing.

What Are The Potential Imprisonment Terms For Tax Crimes

Let’s assume that the court determines the base offense level based on the tax loss. Let’s further assume that this level is not adjusted based on other factors. Finally, let’s assume that the defendant has no prior criminal history.

Under the Guidelines sentences for tax crimes, vary between no jail time to six months for tax losses of $3,000 or less and between 63 months and 78 months for tax losses in excess of $80 million.

Federal Sentencing Guidelines for Tax Crimes

The federal tax evasion statute is one the most commonly used in tax prosecutions. As discussed above, we start with the base offense level, which depends on the tax loss. The Guidelines define the “tax loss” as the total amount of tax that was the object of the offense (i.e., the loss that would have resulted had the offense been successfully completed).

Sometimes we can accurately calculate what that tax loss is, and we will use that number. In some cases, it could be difficult to know the exact number. In those cases, courts will make a reasonable estimate.

“Tax loss” does not include interest or penalties. However, it may include interest derived by the defendant from the unreported income. Under the Guidelines, there are different methods of calculating the tax loss depending on whether the tax evasion involved an underreporting of income or a false claim of deduction or exemption.

It is important to note that in calculating the tax loss, the court may include losses from years not charged in the indictment.

Base Tax Loss Table

This is how the base tax loss offense level is calculated. Understand, that this is the base level only. It could increase or decrease based on additional factors.

 

Tax Loss (apply the greatest)	Offense Level
(A) $2,500 or less	6
(B) More than $2,500	8
(C) More than $6,500	10
(D) More than $15,000	12
(E) More than $40,000	14
(F) More than $100,000	16
(G) More than $250,000	18
(H) More than $550,000	20
(I) More than $1,500,000	22
(J) More than $3,500,000	24
(K) More than $9,500,000	26
(L) More than $25,000,000	28
(M) More than $65,000,000	30
(N) More than $150,000,000	32
(O) More than $250,000,000	34
(P) More than $550,000,000	36

 

How Can The Base Offense Level Change

The base offense level in this Tax Loss Table can increase under certain specific offense characteristics. For example, there is a two-level increase if the defendant did not report or correctly identify the source of income from criminal activity exceeding $10,000 in any given year.

Another example is a two-level increase in the base level if the defendant used “sophisticated means” to impede the discovery of the nature or extent of the offense. Sophisticated means any conduct that is more complex or demonstrates greater intricacy or planning than a routine tax-evasion case. Here are examples of sophisticated means: using offshore bank accounts, shell corporations, and sham transactions in the definition.

What matters here is that the scheme is sophisticated, not necessarily the taxpayer. So, your offense level may increase even if you were only a minor participant in a complicated scheme devised by someone else.

Assisting in the Preparation of Fraudulent or False Documents 

There is a separate sentencing Guideline for these cases, but the calculations of the base level and the tax loss are the same as in the Guideline for tax evasion.

There is also a two-level increase in the base offense level for the use of “sophisticated means”. Furthermore, there can be a two-level increase if you committed this offense as part of your business as a tax preparer or an accountant, or if this scheme was a substantial portion of your income.

Norman Spencer Law Group for Federal Criminal Tax

Our federal criminal attorneys have years of experience defending clients against criminal allegations. We are very familiar with the Federal Sentencing Guidelines and are extremely industrious when it comes to convincing judges to show lenience at sentencing.

Our team includes not only lawyers but also professional sentence mitigating specialists and other experts whose opinions can be very helpful before and during the sentencing process.

If you are facing federal criminal tax charges, call us today to set up an immediate consultation with an attorney!

The IRS and the Department of Justice are extremely aggressive when it comes to going after what they believe is failure to pay taxes or tax evasion. Thousands of taxpayers become their targets each year. If you experience tax evasion investigations, Norman Spencer Law Group PC is by your side!

Whether you are being investigated by the IRS or are facing criminal tax charges, you are not alone. Our tax fraud federal defense lawyers will protect you anywhere in the United States or around the world. We have years of experience defending criminal tax matters and the strongest support team of forensic accountants and former IRS officers. If you find yourself in the IRS cross-hair, take no chances with your future! Call Norman Spencer immediately!

What to Do When the IRS Agents Contact You

No one is looking forward to the prospect of dealing with the IRS, let alone the IRS Special Agents. As much as you would not like this to happen, chances are, if you are reading this page, it did happen. Hopefully, you read this before you speak with the agents.

Here is the shortlist to highlight our best recommendations for safe interactions with the IRS agents.

• Do not agree to speak with them without your lawyer present (in fact you should not speak with them even with your lawyer present)
• Do not give them any documents
• Politely ask for their business cards and tell them that your lawyer will contact them
• Immediately contact Norman Spencer Law Group to speak with an experienced federal defense attorney.

If you follow these simple recommendations, the likelihood of the best possible outcome will have increased in the most significant way. Failure to follow these recommendations will cost you much more than what you would be prepared to pay.

For years our criminal tax attorneys have represented clients before the IRS in both criminal and administrative matters. This simple advice is not just words, it is borne out of years of practice and experience. Call Norman Spencer before you speak with the agents!

How We Can Help With Tax Evasion Investigations 

The outcome of the criminal case is impossible to predict. No lawyer knows what will happen. No lawyer should be promising the Moon. However, the pledge we make to our clients is to do everything possible to resolve your IRS case administratively without charges even filed. Many of our clients enjoyed just this. There are many strategies we use to achieve this, including working with forensic accountants to mitigate the tax liability and convince the agent to recommend that the case is not prosecuted. This requires patience and expertise, which we have in abundance. Call our office today to find out what we can do for you.

Background on Tax Enforcement in the United States

The US government is devoting significant resources to vigorously and uniformly implementing internal revenue laws. Individuals and companies who breach tax laws face criminal penalties, which the government hopes will discourage others. The Tax Division of the United States Department of Justice has the power to administer all federal criminal tax enforcement and to allow or refuse tax investigations and prosecutions.

Administrative Investigations By the IRS

The IRS investigative protocol is quite complex and involves a heavily bureaucratic process. IRS Special Agents with the Criminal Investigation Division (CID) investigate complaints of criminal violations and related provisions of Title 18, United States Code.  CID normally launches an investigation in response to one of the following:

• Fraud referrals from other IRS divisions;
• Information from other government entities;
• Information from private parties; or/and matters or projects created by CI.

CI approves investigations into matters that it suspects have the potential for criminal fraud prosecution or warrant further investigation. Special agents may investigate certain crimes to the degree that their resources allow. They also perform joint investigations with IRS operating division members. Special agents and revenue agents typically work together to investigate situations where taxpayers file false returns or willfully refuse to file tax returns.

What is the Special Agent Report

A joint inquiry with revenue officers normally follows a deliberate failure to pay tax. When the administrative investigation is done, the special agent prepares a special agent’s report (SAR). The report recommends that the government prosecutes the case.

The SAR, which includes a written account of the investigation and the special agent’s recommendations, is reviewed by both the special agent’s superiors and the Chief Counsel, Criminal Tax Division (CT Counsel). CT Counsel then drafts a Criminal Enforcement Memorandum (CEM) that includes information about the essence of the crime(s) for which the special agent recommends prosecution, the facts used to prove the crime(s), technological or legal challenges, anticipated prosecutorial problems, and the special agent’s particular recommendation.

What Happens if the IRS Wants to Prosecute a Taxpayer

If the CI Special Agent-in-Charge (SAC) decides that the government should prosecute the case, they will refer it to the Tax Division or, in some cases, the United States Attorney’s Office. A copy of the transmittal letter is submitted to the Tax Division when the IRS refers a case directly to the US Attorney’s Office. If the case involves only legal-source income (i.e., no drugs or organized crime) and the taxpayer’s attorney tell the IRS that the taxpayer wants to enter a guilty plea during an administrative investigation of a criminal tax case, the IRS may refer the case to both the United States Attorney’s Office and the Tax Division for an expedited guilty plea.

The IRS can send tax returns or tax return details with the Department of Justice when it refers a criminal case to them. If the IRS makes the criminal referral, they won’t continue or start a new administrative investigation with respect to the taxpayer for the same tax and taxable period.

However, if the Tax Division decides not to prosecute a case submitted to it by the IRS, the IRS can take any disciplinary action it sees fit in the circumstances, including referring the case to CI for further investigation. If CI wishes to investigate the case further, it will issue IRS summonses and the case will continue. The IRS always has the option of referring the case back to the Tax Division.

Inquiries by Grand Jury in Criminal Tax Evasion Investigations 

 Although a federal grand jury investigates both tax and non-tax violations, the Tax Division must first approve and allow the use of a grand jury to investigate criminal tax violations. At times CID can’t complete its investigation or decide that the administrative process would not be enough to collect sufficient evidence. It will request that the Tax Division permit a grand jury investigation.

Once a criminal referral has been made, the IRS, including CID, stops its administrative process. The case is now in the federal prosecutor’s hands and the grand jury process may begin. Before a United States Attorney’s Office may file information or request the return of an indictment in an extended investigation concerning criminal tax matters, the Tax Division must first give the go-ahead with regards to the relevant tax charges.

Without the Tax Division’s approval, the prosecutor will not start the grand jury investigation on a tax case. The US Attorney’s Office and the IRS must send a written request to the Tax Division for approval before they start. The request must provide the necessary foundation for the Tax Division to approve the investigation’s extension.

What Happens After a Grand Jury Investigation?

At some point, a grand jury investigation is completed and the prosecutor decides that there is sufficient evidence to prosecute. The US Attorney’s Office will ask the special agent assigned to the case to prepare a SAR. The US Attorney’s Office must give the Tax Division a written recommendation about the prosecution for tax violations. The Tax Division will review the prosecution recommendation. A grand jury investigation’s recommendation against indictment must also go to the Tax Division for review. Alternatively, the IRS would inform the Tax Division that they have no recommendations for action. The Tax Division will complete its analysis within thirty days of obtaining the recommendation and either approve or decline prosecution.

What to Do When Experiencing Tax Evasion Investigations

If you believe that the IRS is targeting you, do not wait to call our firm! The sooner you reach out to us the better the results may be. Norman Spencer PC criminal federal attorneys represent clients in federal criminal cases nationwide. Call us today for a consultation!

Tax fraud investigations and prosecutions can have a devastating effect on your life. Defending against these allegations takes strategy and skills not too many lawyers have. You can rely on the tax fraud defense attorneys with Norman Spencer Law Group for the most effective defense strategy if you face the IRS and the Department of Justice.

Nationwide Tax Fraud Investigations Attorneys

When representing a client in a tax investigation, it is the absolute must that that lawyer has a firm grip on the nature of the prosecution case and the relevant facts. Because federal tax prosecutions involve a very complex multi-level bureaucratic review process, the lawyer should be familiar with it and know how to use it to the client’s advantage.

Our team includes federal criminal attorneys, former IRS agents, forensic accountants, and certified fraud investigators. At Norman Spencer Law Group we are knowledgeable about the IRS and the DOJ process and we can help you right now.

We share this shortlist of the best practices we follow and the advice we give when representing clients in criminal tax investigations.

Our Best Advice to Clients and Employees

The best advice we can give to any client, whether corporate or individual, as well as the client’s employee is this. Never disclose information to government investigators before you speak with us.

Anything ever disclosed to the investigators must be reviewed and approved by an attorney beforehand. You should never give any information until you show it to the attorney who understands the facts of your case.

In real life, of course, clients do disclose information to investigators before speaking to a lawyer. This happens for many reasons. It is actually normal for an average person to try to exonerate himself or herself when first contacted by the investigators. It can be extremely damaging to them, but there is nothing we could do about that after the fact. The cake cannot be un-backed. However, we must examine anything you disclosed, so making and keeping copies of all the documents is extremely important.

Being Proactive Is Important

Not everyone plans on being investigated by the IRS. However, if the IRS contacts you, it is time to get ready and be prepared and proactive. We advise clients to call our firm as soon as the IRS agents first contact you. The early gathering of the facts in a tax fraud investigation is essential.

We will immediately conduct our own defense investigation before anything else. Our law firm is using various experts, including forensic accountants and tax specialists.

Kovel Agreement

The way to hire these specialists is directly through our office. We prepare what is known as the Kovel agreement, which sets up the relationship of the accountant to our firm. Any work the accountant will do on your case in preparation for the defense will be done under the umbrella of our firm, and we will own all the materials the accountant generates. This gives you the protection you would have by dealing with a lawyer but not by dealing with the accountant directly.

Maintaining Tax Records And Protecting Your Rights

The government’s ability to investigate and ultimately prosecute you for tax fraud and evasion depends on whether they have access to your records and other documents.

As you know, the records and documents you give your lawyer are protected by the attorney-client privilege and the attorney work-product doctrine. However, the records you give your accountant who was not hired by an attorney to help defend you, are not protected by anything. There is no Fourth or Fifth Amendments protection, no attorney-client privilege, or attorney work-product protection.

Here is the solution that solves the problem. If you transfer the records to your lawyer, you could raise a Fifth Amendment privilege to the production of these records and the attorney could interpose an objection under the attorney-client privilege.

How We Defend Taxpayers Against Tax Fraud Investigations

If we take your case, one of the first important issues we need to decide is whether and to what extent we should cooperate with the IRS. This requires serious consideration. At times, the IRS agents view failure to cooperate as an indication of possible fraud. They may get even more suspicious as they continue their investigation. They may also expand the scope of the investigation, the exact opposite of what we want.

On the other hand, cooperation with the agents is a perilous proposition in itself. Any admissions you or your lawyer make are generally admissible at trial. Agents are trained to solicit voluntary admissions from their targets. Being cooperative never means that you will not be prosecuted. This applies to dealing with the IRS Special Agents at the beginning of the investigation as well as dealing with the IRS after the case became criminal.

Keeping the dialogue open allows us to disclose a defense, which might cause the government to decide to terminate the investigation. Furthermore, the dialogue provides us the opportunity to listen to any information the government is willing to disclose. At the same time, the last thing we want is to do the prosecutors’ work for them and help them make their case. What we say and submit to the government must be thought through and measured.

To balance these considerations we exercise the cautious approach. We know how to walk a thin line between avoiding stirring the agent’s suspicion and avoiding saying too much. Once we review the case and have a full grasp of the facts, we determine the best tactics.

Your Best Choice For Tax Fraud Investigations

There are plenty of defense attorneys offering their services. Most of them are good at what they do. When you deal with the IRS criminal investigation, you need to make sure your attorney has experience with the IRS criminal investigations, not any criminal case that comes through the door. You need to make sure that they have successfully handled such cases before.

Information is the key. We invite you to call us for a consultation to see what we can do for you. Our federal criminal lawyers have handled numerous criminal tax matters at all stages. Our team has former IRS agents, forensic accountants, and tax specialists. We have the knowledge and the resources to take your case to the optimal conclusion. Call us today to learn how we can help.

There are two main types you might be charged for when it comes to tax fraud: civil or criminal.  Although they have some overlap, there are also some pretty significant differences. Civil tax fraud will typically end with penalties brought against a taxpayer (loss of their money or assets). In contrast, criminal tax fraud usually results in either jail time or probation (loss of their freedom).  When it comes to civil vs. criminal tax fraud, it’s important to remember that a taxpayer can be found liable for both, even for the exact activities/charges.

What is Civil Tax Fraud?

Under the Internal Revenue Code, the government can bring up civil penalties on taxpayers for any type of fraudulent conduct. This fraudulent conduct can include a few different things, from either willfully filing a return that doesn’t have correct information or willfully failing to file their tax return at all.

Section 6663(a) of this code generates a penalty if any underpayment of tax due to fraud shows on a tax return. In situations like these, the government is allowed to bring on a penalty equal to 75% of the part of the underpayment resulting from fraud. To prosecute this fraudulent underpayment penalty, the government needs to provide clear and convincing evidence. Suppose the government can meet this requirement. In that case, the entire underpayment will be assumed to be the result of fraud unless the taxpayer can show by a preponderance of the evidence that any part is not because of fraud. If a joint tax return is filed, the fraud penalty will not apply to both spouses unless a portion of the underpayment is actually because of the spouses’ fraudulent conduct.

It’s essential to note that the fraud penalty even survives the taxpayer’s death who committed the fraud. In various cases, the tax court has also held that the fraud penalty applies where a taxpayer files a fraudulent return and then files an amended return trying to correct the fraud.

Another notable section is section 6651(f). This provides authority for the government to bring on a fraudulent failure to file a penalty. Under this code, the government can charge a 75% penalty on the tax shown on a return. This is usually pursued if the taxpayer fails to file their return, specifically with the intent to evade tax. To successfully pursue this, of course, the government has to prove by clear and convincing evidence that the taxpayer’s failure to timely file was intentional on their part and that they were trying to evade the tax that they owed.

What is Criminal Tax Fraud?

Many different provisions have to do with criminal tax fraud in the code. These include tax evasion, willful failure to collect or pay over tax, and even failure to file a return or provide information to pay your taxes.

What About Tax Evasion?

When people think of criminal tax fraud, they’re probably the first to think of tax evasion. It’s a felony for any person to try to evade paying their taxes willfully. The law is pretty broad on purpose to cover the many different ways that defendants might avoid paying their taxes. In legal terminology, a person can only be found guilty of tax evasion if the government can show beyond a reasonable doubt that there was willfulness, there was a tax deficiency, and there was some sort of affirmative action that the person took part in avoid paying taxes. In general, tax evasion falls either under an evasion of an assessment or an evasion of tax payment.

Civil vs. Criminal Tax Fraud Differences

There are some definite similarities in civil and criminal tax fraud, but there are also some crucial differences. The main differences between civil and criminal tax fraud are:

• Statute of Limitations: In general, there is no statute of limitations for the government to bring up fraud penalties when it comes to civil tax fraud. With that said, for most criminal tax fraud cases, the government has six years to bring up a criminal case.
• Burden of Proof: The burden of proof is a legal term, but it has to do with the obligation that’s brought upon one party in a court proceeding to offer evidence to a judge or jury. For civil tax fraud, the burden of proof is on the government to show clear and convincing evidence of fraud. For criminal tax fraud cases, there’s a constitutional requirement that makes it, so the government needs to prove all the elements of the statute that are at issue beyond a reasonable doubt.

The Importance of Experienced Lawyers 

To advise you properly, a lawyer must thoroughly understand the differences between civil and criminal tax fraud. In many cases, if there are allegations of civil tax fraud, there are also going to be allegations of criminal conduct. When a client is exposed to either civil or criminal tax exposure, it’s a good idea to take advantage of all the different programs that the IRS offers to taxpayers to become compliant with little criminal exposure. This is by no means an exhaustive breakdown of civil vs. criminal tax fraud, but it should give you more information on the similarities and differences involved. At Norman Spencer Law Group, we can advise you and represent you in any type of tax fraud. Call for more information today!