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3.00 TAX DIVISION POLICY DIRECTIVES AND MEMORANDA
Updated May 2001
DEPARTMENT OF JUSTICE
TAX DIVISION
DIRECTIVE NO. 52
January 2, 1986
The Authority to Execute Title 26 or
Tax-related Title 18 Search Warrants
Pursuant to the authority vested in me by Part 0, Sub-Part N of Title 28
of the Code of Federal Regulations, Section 0.70, delegation of authority with
respect to approving the execution of Title 26, U.S.C., or tax-related Title 18,
U.S.C., search warrants directed at offices, structures, premises, etc., owned,
controlled or under the dominion of the subject or target of a criminal
investigation, is hereby conferred upon:
1. Any United States Attorney appointed under Section 541 of
Title 28, U.S.C.,
2. Any United States Attorney appointed under Section 546 of
Title 28 U.S.C.,
3. Any permanently appointed representative within the United
States Attorney's office assigned as First Assistant United
States Attorney,
4. Or to any permanently appointed representative within the
United States Attorney's office assigned as chief of criminal
functions.
This delegation of authority is expressly restricted to these, and no
other, individuals.
This delegation of authority does not affect the statutory authority and
procedural guidelines relating to the use of search warrants in criminal
investigations involving disinterested third parties as contained in 28 C.F.R.
Sec. 59.1, et seq.
The Tax Division shall have exclusive authority to seek and execute a search
warrant that is directed at the offices, structures or premises owned,
controlled, or under the dominion of a subject or target of an investigation who
is:
1. An accountant;
2. A lawyer;
3. A physician;
4. A local, state, federal, or foreign public official or political
candidate;
5. A member of the clergy;
6. A representative of the electronic or printed news media;
7. An official of a labor union;
8. An official of an organization deemed to be exempt under Section
501(c)(3) of the Internal Revenue Code.
Any application for a warrant to search for evidence of a criminal tax
offense not specifically delegated herein must be specifically approved in
advance by the Tax Division pursuant to Section 6-2.330 of the United States
Attorneys' Manual.
Notwithstanding this delegation, the United States Attorney or his delegate
has the discretion to seek Tax Division approval of any search warrant or to
request the advice of the Tax Division regarding any search warrant.
The United States Attorney shall notify the Tax Division within ten working
days, in writing, of the results of each executed search warrant and shall
transmit to the Tax Division copies of the search warrant (and attachments and
exhibits), inventory, and any other relevant papers.
The United States Attorneys' Manual is hereby modified effective January
2, 1986.
ROGER M. OLSEN
Acting Assistant Attorney General
Tax Division
ATTACHMENT
Subject: Authority to Execute Title 26 Date: AUG. 7, 1984
Tax-Related Title 18 Search Warrants
To: All United States Attorneys
From: Glenn L. Archer, Jr.
Asst. Attorney General
Tax Division
By Tax Division Directive No. 49 (copy attached), I have authorized
delegation to United States Attorney's offices the authority to approve the
execution of certain limited Title 26 or tax-related Title 18 search warrants.
At the request of the Internal Revenue Service, the effective date of this
delegation is October 1, 1984. In recent years, the case law concerning search
and seizure has developed to the point where it is clear that, upon a showing of
probable cause, the Government may conduct reasonable searches for the purpose
of obtaining documentary evidence establishing the commission of a crime. The
developing case law has led, in part, to the decision to delegate the authority
to approve requests for search warrants in tax cases on a limited basis.
The procedure will now permit a direct request from District Counsel's
office to you. The delegation order permits consultation or referral of the
matter to the Tax Division, as you choose. The delegation extends to the United
States Attorney and the Chief of your Criminal Division. It cannot be delegated
to anyone else in your office. There is a ten-day notification requirement which
will permit the Tax Division to collect the relevant data necessary to evaluate
the use of search warrants by the Internal Revenue Service and Department of
Justice nationally.
If you have any questions whatsoever, please contact Roger M. Olsen, Deputy
Assistant Attorney General, Tax Division, telephone: 633-2915, or Stanley F.
Krysa, Chief, Criminal Section, Tax Division, telephone: 633-2973.
I would appreciate having the name and telephone number of the Assistant
United States Attorney in each office who, in addition to the United States
Attorney, is authorized to approve these warrants. A list of those names will
be forwarded to the IRS and, of course, retained for the Tax Division's files.
Also attached is a brief, technical memorandum on the law of search
warrants for documentary evidence.
BRIEF MEMORANDUM OF LAW
CONCERNING SEARCH WARRANTS
Ever since Warden v. Hayden, 378 U.S. 294 (1967), established
that the Government could seize ''mere evidence'' pursuant to a search warrant,
the use of search warrants for items, such as personal papers and business
records, became a viable legal possibility. In Warden v. Hayden,
although the items of clothing seized were evidentiary, their seizure did not
violate the Fifth Amendment privilege, since the items were not "'testimonial'
or 'communicative' in nature, and their introduction therefore did not compel
respondent to become a witness against himself ..." supra, 302-303. Rule
41(b) of the Federal Rules of Criminal Procedure echoes this holding and provides
that: "A warrant may be issued ... to search for and seize any ... property that
constitutes evidence of the commission of a criminal offense ...".
In 1976, the possibility that a search and seizure of business records
might violate the Fifth Amendment privilege against self-incrimination was
foreclosed in Andresen v. Maryland, 427 U.S. 463 (1976). The
Supreme Court upheld the search of the defendant's law office and of the office
of the real estate firm which he also controlled, although incriminating business
records were found at both locations. The Court based its opinion on the finding
that the individual against whom the search was directed was not required to aid
in the discovery, production, or authentication of incriminating evidence; thus,
the seizure of the business records was not a violation of the Fifth Amendment.
Cf. United States v. Doe, 52 U.S.L.W. 4296 (Feb. 28, 1984).
The Supreme Court's approval of a law office search in
Andresen lends some support to similar searches in the future.
However, the issue of attorney/client privilege or work-product doctrine was not
specifically addressed in Andresen and is, therefore, still a matter of
controversy and sensitivity. In addition, the search's legality may depend on
whether the status in the investigation of the individual whose property is
searched is that of a disinterested third party or whether he is believed to have
engaged in criminal conduct. See Zurcher v. Stanford Daily,
436 U.S. 547 (1978); United States v. Bithoney, 631 F. 2d l (lst
Cir. 1980), cert. denied, 449 U.S. 1083 (1981).
Because the questions of privilege and status in the investigation remain
sensitive legal issues, the Tax Division has decided to delegate the authority
to approve search warrants in tax cases only in those limited instances where the
search warrant is directed at offices, structures, or premises owned, controlled,
or under the dominion of the subject or target of a criminal investigation. The
subject, or target, moreover, must not fall into the exempted categories listed
in the delegation order, which categories we deem to be of such a sensitive
nature, from the perspective of tax law enforcement, that prior approval of the
Tax Division is still required before a search warrant is obtained.
Aside from questions of strict legality, search warrants in tax
investigations involve potential problems and issues intrinsic to tax cases. The
concept of seizing personal or business books and records as the evidence or
instrumentality of a crime is not as direct or simple a problem as is the seizure
of a contraband. These documents usually contain much personal and confidential
information and these very same documents, which, by their own nature, are not
unusual, illegal or dangerous, will be the evidence of or the instrumentality of
the crime to be charged. In addition to the controversial nature of such a
seizure of documents, the requirement that the items to be seized must be named
with specificity is more difficult to meet. In tax cases, the warrant must be
specific, not only regarding the items to be seized and the place searched, but
a specific time frame must also be stated.
DEPARTMENT OF JUSTICE
TAX DIVISION DIRECTIVE
NO. 86 - 58
May 14, 1986
Introduction. While it is the function of the Tax Division
to carefully review the facts, circumstances, and law of each criminal tax case
as expeditiously as possible, the taxpayer should be given a reasonable
opportunity to present his/her case at a conference before the Tax Division.
Where the rules governing conferences are so rigid and inflexible that such an
opportunity is effectively denied a taxpayer, the interests of justice are not
served. The following guidelines will assist the Tax Division attorneys in
reviewing such cases.
(1) Vicarious Admissions. Effective immediately, the
vicarious admissions rule for statements by lawyers attending conferences before
the Criminal Section shall no longer be used by the Tax Division, except where
the lawyer authenticates a written instrument, i.e., document, memorandum,
record, etc.
(2) Administrative Investigations. Effective July 1,
1986, plea negotiations may be entertained at the conference in non-grand jury
matters, consistent with the policies of the appropriate United States Attorney's
office. Written plea agreements should be prepared and entered into by the
United States Attorney's office unless there is a written understanding between
the Tax Division and the United States Attorney's office to the contrary. Where
the prospective defendant indicates a willingness to enter into a plea of guilty
to the major counts(s) and to satisfy the United States Attorney's office policy,
the matter should be referred to the United States Attorney's office for plea
disposition.
(3) Number of Conferences. There is no fixed number
of conferences which may be granted in any one particular case. Ordinarily, one
conference is sufficient. However, in some cases it may be that more than one
conference is appropriate. The test is not in the number of conferences, for
there is no right to a conference, but whether, under the facts and circumstances
of the case, sufficient progress is or will be made in either the development of
material facts or the clarification of the applicable law, without causing
prejudice to the United States. Tax Division attorneys should be mindful that
justice delayed is justice denied and, therefore, sound, professional judgment
should be used at all times in such matters.
(4) Witness at Conferences. On occasion, the taxpayer
or a witness may attend the conference. In rare situations, the taxpayer or a
witness may attempt to make oral reprensentations or statements at the
conference. There are no restrictions on the use of such statements by the
Government. However, such attempts should be discouraged, since the Tax Division
is conducting a review of an investigation and is not conducting either a hearing
or an investigation. Under no circumstances may evidence be presented at the
conference based upon any understanding that it is in lieu of any person
testifying before a grand jury.
(5) Grand Jury Investigations and Coordination with United
States Attorney's Office. Effective immediatley, in every grand jury
investigation where a conference is requested, the Tax Division trial attorney
shall initially contact the United States Attorney's office and discuss the case
with the appropriate Assistant United States Attorney, and ascertain whether
disclosure of any facts of the case is likely to expose any person, including
witnesses, to the risk of intimidation or danger. If there is such a risk, the
trial attorney shall then advise the appropriate assistant chief of the Criminal
Section, who shall decide the appropriate course of action. The Tax Division
trial attorney shall advise the Assistant United States Attorney that he/she may
attend the conference if they so desire.
ROGER M. OLSEN
Assistant Attorney General
Tax Division
DEPARTMENT OF JUSTICE
TAX DIVISION
DIRECTIVE NO. 86-59
AUTHORITY TO APPROVE GRAND JURY EXPANSION
REQUESTS TO INCLUDE FEDERAL CRIMINAL
TAX VIOLATIONS
AGENCY: Department of Justice
ACTION: Notice
SUMMARY: This Directive delegates the authority to approve requests seeking to
expand nontax grand jury investigations to include inquiry into possible federal
criminal tax violations from the Assistant Attorney General, Tax Division, to any
United States Attorney, Attorney-In-Charge of a Criminal Division Organization
Strike Force or Independent Counsel. The Directive also sets forth the scope of
the delegated authority and the procedures to be followed by designated field
personnel in implementing the delegated authority.
EFFECTIVE DATE: October 1, 1986
FOR FURTHER INFORMATION CONTACT: Edward M. Vellines, Senior Assistant Chief,
Office of Policy & Tax Enforcement Analysis, Tax Division, Criminal Section (202-
633-3011). This is not a toll number. [FN1]
FN1. This information in the Directive is out of date. Questions
concerning this directive should now be addressed to the Criminal
Appeals and Tax Enforcement Policy Section at 202-514-3011.
SUPPLEMENTARY INFORMATION: This order concerns internal Department management
and is being published for the information of the general public.
TAX DIVISION DIRECTIVE NO. 86-59
By virtue of the authority vested in me by Part O, Subpart N of Title 28
of the Code of Federal Regulations, particularly Section 0.70, delegation of
authority with respect to approving requests seeking to expand a nontax grand
jury investigation to include inquiry into possible federal criminal tax
violations is hereby conferred on the following individuals:
1. Any United States Attorney appointed under Section 541 or 546 of
Title 28, United States Code.
2. Any Attorney-In-Charge of a Criminal Division Organization Strike
Force established pursuant to Section 510 of Title 28, United States
Code.
3. Any Independent Counsel appointed under Section 593 of
Title 28, United States Code.
The authority hereby conferred allows the designated official to approve,
on behalf of the Assistant Attorney General, Tax Division, a request seeking to
expand a nontax grand jury investigation to include inquiries into potential
federal criminal tax violations in a proceeding which is being conducted within
the sole jurisdiction of the designated official's office. (Section
301.6103(h)(2)-1(a)(2)(ii) (26 C.F.R.)). Provided, that the delegated
official determines that--
1. There is reason to believe, based upon information developed during
the course of the nontax grand jury proceedings, that federal
criminal tax violations may have been committed.
2. The attorney for the Government conducting the subject nontax grand
jury inquiry has deemed it necessary in accordance with F.R.Cr.P.
6(e)(A)(ii) to seek the assistance of Government personnel assigned
to the Internal Revenue Service to assist said attorney in his/her
duty to enforce federal criminal law.
3. The subject grand jury proceedings do not involve a
multijurisdictional investigation, nor are the targets individuals
considered to have national prominence--such as local, state,
federal, or foreign public officials or political candidates;
members of the judiciary; religious leaders; representatives of the
electronic or printed news media; officials of a labor union; and
major corporations and/or their officers when they are the targets
(subjects) of such proceedings.
4. A written request seeking the assistance of Internal Revenue Service
personnel and containing pertinent information relating to the
alleged federal tax offenses has been forwarded by the designated
official's office to the appropriate Internal Revenue Service
official (e.g., Chief, Criminal Investigations).
5. The Tax Division of the Department of Justice has been furnished by
certified mail a copy of the request seeking to expand the subject
grand jury to include potential tax violations, and the Tax Division
interposes no objection to the request.
6. The Internal Revenue Service has made a referral pursuant to the
provisions of 26 U.S.C. Section 6103(h)(3) in writing stating that
it: (1) has determined, based upon the information provided by the
attorney for the Government and its examination of relevant tax
records, that there is reason to believe that federal criminal tax
violations have been committed; (2) agrees to furnish the personnel
needed to assist the Government attorney in his/her duty to enforce
federal criminal law; and (3) has forwarded to the Tax Division a
copy of the referral.
7. The grand jury proceedings will be conducted by attorney(s) from the
designated official's office in sufficient time to allow the results
of the tax segment of the grand jury proceedings to be evaluated by
the Internal Revenue Service and the Tax Division before undertaking
to initiate criminal proceedings.
The authority hereby delegated includes the authority to designate: the
targets (subjects) and the scope of such tax grand jury inquiry, including the
tax years considered to warrant investigation. This delegation also includes the
authority to terminate such grand jury investigations, provided, that
prior written notification is given to both the Internal Revenue Service and the
Tax Division. If the designated official terminates a tax grand jury
investigation or the targets (subjects) thereof, then the designated official
shall indicate in its correspondence that such notification terminates the
referral of the matter pursuant to 26 U.S.C. Section 7602(c).
This delegation of authority does not include the authority to file an
information or return an indictment on tax matters. No indictment is to be
returned or information filed without specific prior authorization of the Tax
Division. Except in Organized Crime Drug Task Force Investigations, individual
cases for tax prosecution growing out of grand jury investigations shall be
forwarded to the Tax Division by the United States Attorney, Independent Counsel
or Attorney-in-Charge of a Strike Force with a special agent's report and
exhibits through Regional Counsel, (Internal Revenue Service) for evaluation
prior to transmittal to the Tax Division. Cases for tax prosecutions growing out
of grand jury investigations conducted by an Organized Crime Drug Task Force
shall be forwarded directly to the Tax Division by the United States Attorney
with a special agent's report and exhibits.
The authority hereby delegated is limited to matters which seek either to:
(1) expand nontax grand jury proceedings to include inquiry into possible federal
criminal tax violations; (2) designate the targets (subjects) and the scope of
such inquiry; or (3) terminate such proceedings. In all other instances,
authority to approve the initiation of grand jury proceedings which involve
inquiries into possible criminal tax violations, including requests generated by
the Internal Revenue Service, remains vested in the Assistant Attorney General
in charge of the Tax Division as provided in 28 C.F.R. 0.70. In addition,
authority to alter any actions taken pursuant to the delegations contained herein
is retained by the Assistant Attorney General in charge of the Tax Division in
accordance with the authority contained in 28 C.F.R. 0.70.
Roger M. Olsen
Assistant Attorney General
Tax Division
Approved to take effect on October 1, 1986
DEPARTMENT OF JUSTICE
TAX DIVISION
DIRECTIVE NO. 87 - 61
DELEGATION OF AUTHORITY FOR TAX PROSECUTIONS
INVOLVING RETURNS UNDER 26 U.S.C. SECTION 6050I
By virtue of the authority vested in me by Part 0, Subpart N of Title 28
of the Code of Federal Regulations (C.F.R.), particularly Section 0.70,
delegation of authority with respect to authorizing tax prosecutions, under Title
26, United States Code (U.S.C.), Sections 7203 and 7206 with respect to Returns
(IRS Form 8300) Relating to Cash Received in a Trade or Business as prescribed
in 26 U.S.C. Section 6050I, is hereby conferred on the following individuals:
1. The Assistant Attorney General, Deputy Assistant Attorneys General,
and Section Chiefs of the Criminal Division.
2. Any United States Attorney appointed under Section 541 or 546 of
Title 28, U.S.C.
3. Any permanently appointed representative within the United States
Attorney's Office assigned either as First Assistant United States Attorney or
Chief of criminal functions.
4. Any Attorney-In-Charge of a Criminal Division Organization Strike
Force established pursuant to Section 510 of Title 28, U.S.C.
5. Any Independent Counsel appointed under Section 593 of Title 28,
U.S.C.
This delegation of authority is expressly restricted to the aforementioned
individuals and may not be redelegated.
The authority hereby conferred allows the designated official to authorize,
on behalf of the Assistant Attorney General, Tax Division, tax prosecutions under
26 U.S.C. Sections 7203 and 7206 with respect to returns (IRS Form 8300)
prescribed in 26 U.S.C. Section 6050I relating to cash received in a trade or
business; Provided, that:
1. The prosecution of such tax offenses (e.g. Sections 7203 and 7206)
involves solely cash received in a trade or business as required by 26 U.S.C.
Section 6050I.
2. The matter does not involve the prosecution of accountants,
physicians, or attorneys (acting in their professional representative capacity)
or their employees; casinos or their employees; financial institutions or their
employees; local, state, federal or foreign public officials or political
candidates; members of the judiciary; religious leaders; representatives of the
electronic or printed news media; officials of a labor union; and publicly-held
corporations and/or their officers.
3. The Tax Division of the Department of Justice will be furnished by
certified mail a copy of the referral from the Internal Revenue Service to the
designated field office personnel regarding the potential tax violations.
Except as expressly set forth herein, this delegation of authority does not
include the authority to file an information or return an indictment on tax
matters. The authority hereby delegated is limited solely to the authorization
of tax prosecutions involving the filing or non-filing of returns (IRS Form 8300)
pursuant to 26 U.S.C. Section 6050I. The authority to alter any actions taken
pursuant to the delegation contained herein is retained by the Assistant Attorney
General, Tax Division, in accordance with the authority contained in 28 C.F.R.
0.70.
Notwithstanding this delegation, the designated official has the discretion
to seek Tax Division authorization of any proposed tax prosecution within the
scope of this delegation or to request the advice of the Tax Division with
respect thereto.
Roger M. Olsen
Assistant Attorney General
Tax Division
Approved to take effect on February 27, 1987.
DEPARMENT OF JUSTICE
TAX DIVISION DIRECTIVE NO. 75
March 21, 1989
MODIFICATION OF POLICY RE USE OF 26 UNITED STATES
CODE SECTION 7207 IN FALSE RETURN FILING CIRCUMSTANCES
INTRODUCTION
The Tax Division recognizes that United States Attorneys frequently
investigate financial crimes through joint tax and nontax grand jury
investigations. In such matters, it is appropriate that the culpable parties be
prosecuted for felony violations, that immunity be used sparingly, and that
cooperating participants in the corrupt activity be required to plead guilty to
the commission of some significant aspect of the original conduct.
We also recognize there are instances when a minor target seeks to
cooperate, and his or her culpability is such that neither immunity nor a plea
to a felony is appropriate. In short, the criminal conduct is more suited to a
misdemeanor charge, when there is an agreement to cooperate in the ongoing
investigation of the principal target(s).
In some situations, described above, the only misdemeanor charges that may
be available to the prosecution are tax misdemeanors, i.e., sections 7203 or 7207
of Title 26 U.S.C. Where a tax return has not been filed, a section 7203
violation (failure to file) may exist. However, if a tax return has been filed
and the false aspect of that return is minor, e.g., the corrupt person may have
accepted bribes of relatively minor amounts that were not reported or the payor
may have falsely deducted the bribe payment as a business expense, then the
conduct would constitute the filing of a false return, punishable either as a
felony under 26 U.S.C. Section 7206(1) or a misdemeanor under 26 U.S.C. Section
7207.
In the past, the Tax Division would not approve either a prosecution or
guilty plea pursuant to section 7207, when the false document was a tax return,
because it has been our long-standing policy that prosecution of materially false
returns should be for felony charges. We believe that the use of section 7207
should generally be restricted to circumstances where taxpayers submitted false
or altered documents to the IRS in support of information submitted on a
tax return.
We recognize that this policy has created problems because an individual,
who desires to cooperate, may be willing to plead to a misdemeanor but not to a
felony. To address this problem, the Tax Division is modifying its policy to
provide United States Attorneys with a means of dealing with the limited
situation described above.
Accordingly, the Tax Division will now entertain requests for the approval
of guilty pleas to a violation(s) of 26 U.S.C. section 7207 in appropriate
circumstances where the taxpayer is involved in the corrupt activity under
investigation and agrees to cooperate in the ongoing investigation against the
principal target(s). The guidelines for the limited use of 26 U.S.C. section
7207 are set forth below.
The relaxation of the Tax Division policy relative to section 7207
prosecutions will be limited to the circumstances described in the guidelines.
Defendants providing assistance to the Government should otherwise be rewarded
by receiving leniency in the imposition of sentence, as provided by the new
Sentencing Guidelines, rather than by being permitted to plead to reduced
charges.
The procedures outlined will be utilized throughout the remainder of fiscal
years 1989 and 1990. The Tax Division will assess the effect of this change on
the National Tax Compliance Program before making this policy change permanent.
GUIDELINES
The Department of Justice, Tax Division, agrees to consider approving plea
agreements with charges brought under 26 U.S.C. section 7207 for witnesses
cooperating in Title 18 and Title 26 grand jury investigations and in no other
circumstances under the following conditions.
1. Approval for section 7207 charges will not be given in any case in
which the Tax Division has previously authorized charges against the subject
under section 7206(1), section 7201, or a tax (Klein) conspiracy.
2. The Tax Division must be provided with a prosecution statement or
letter describing the outlines of the Title 26 and/or Title 18 investigation, the
involvement of the cooperating witness who will plead, and the anticipated
cooperation that the witness is expected to provide in the investigation.
3. The subject must have agreed to be a cooperating witness in a Title 18
or Title 26 investigation to which the witness' proposed income tax violation is
related.
4. In addition to his cooperation in the ongoing criminal investigation
and prosecution, the subject must agree to cooperate fully and truthfully with
the Internal Revenue Service in any civil audit or adjustment of the tax
liability arising out of the circumstances of the criminal case.
5. The subject must be informed that any plea agreement to tax
misdemeanors under 26 U.S.C. Section 7207 is subject to the approval of the Tax
Division, Department of Justice. No such plea agreement is to be executed until
authorized by the Tax Division or, if executed, unless it contains a provision
that the plea agreement is subject to the approval of the Tax Division.
6. Approval for use of section 7207 will not be given, hence should not
be requested, if the underpayment of taxes resulting from the false statements
in the return exceeds $2500 in any of the years. In such cases the plea must be
to a tax felony charge.
7. The IRS must make a referral pursuant to 26 U.S.C. Section
6103(h)(3)(A). The United States Attorney must have obtained tax disclosure
confirming the filing of the return(s). The Tax Division should be provided with
an abbreviated SAR, a computation of the taxes due, the tax return(s) involved,
and a copy of the plea agreement or a statement of its terms. Section 7207
approval will not be given if the tax disclosure material suggests that a tax
misdemeanor would be an inappropriate disposition of the case.
8. The subject must sign a statement reflecting the amount of the
unreported income or fraudulent deductions and the circumstances involved in all
the years under investigation.
JAMES I. K. KNAPP
Acting Assistant Attorney General
Tax Division
DEPARTMENT OF JUSTICE
TAX DIVISION
DIRECTIVE NO. 77
July 7, 1989
Section 7212(a) Policy Statement
The Tax Division occasionally receives for review recommendations for
prosecution involving the "omnibus" clause of 26 U.S.C. Sec. 7212(a) which
prohibits corrupt endeavors to obstruct or impede the due administration of the
Internal Revenue Code. To promote uniform enforcement of the internal revenue
laws, the Tax Division issues this internal directive setting forth criteria for
use of this clause.
In general, the use of the "omnibus" provision of Section 7212(a) should
be reserved for conduct occurring after a tax return has been filed -- typically
conduct designed to impede or obstruct an audit or criminal tax investigation,
when 18 U.S.C. Section 371 charges are unavailable due to insufficient evidence
of a conspiracy. However, this charge might also be appropriate when directed
at parties who engage in large-scale obstructive conduct involving actual or
potential tax returns of third parties. Continually assisting taxpayers in the
filing of false returns or engaging in other conduct designed to make audits
difficult; and other numerous, large-scale violations of 26 U.S.C. Section
7206(2) or 18 U.S.C. Section 287 (as it pertains to refund claims for other or
fictitious taxpayers), are examples of situations when Section 7212(a) charges
might be appropriate. Such an application of the "omnibus" clause is consistent
with what we believe to be the overall purpose of Section 7212(a), which is to
penalize conduct aimed directly at IRS personnel in the performance of their
duties, and at general IRS administration of the federal tax enforcement program,
but not to penalize tax evasion as such.
The omnibus clause should not be utilized when other more specific charges
are available and adequately reflect the gravamen of the offense. Section
7212(a) pleadings might be utilized to set forth allegations concerning attempted
conspiracies with undercover agents to impede or impair the functions of the IRS,
but no Section 7212(a) count should be predicated on such conduct alone, as that
conduct by itself would rarely be sufficient to impede or impair the due
administration of the Internal Revenue Code.
Use of the omnibus clause in an indictment must be approved by the
Director[FN2] of the Criminal Enforcement Sections or higher.
FN2. There no longer is a Director of the Criminal Enforcement Sections.
Use of the omnibus clause now requires approval of the Deputy Assistant
Attorney General (Criminal). See Tax Division Directive No. 115,
infra.
SHIRLEY D. PETERSON
Assistant Attorney General
Tax Division
DEPARTMENT OF JUSTICE
TAX DIVISION
DIRECTIVE NO. 96
Re: Delegation of Authority to Authorize
Grand Jury Investigations of False
and Fictitious Claims for Tax Refunds
By virtue of the authority vested in me by Part O, Subpart N of Title 28
of the Code of Federal Regulations (C.F.R.), particularly Section 0.70, regarding
criminal proceedings arising under the internal revenue laws, authority to
authorize grand jury investigations of false and fictitious claims for tax
refunds, in violation of 18 U.S.C. §286 and 18 U.S.C. §287, is hereby
conferred on all United States Attorneys.
This delegation of authority is subject to the following limitations:
1. The case has been referred to the United States Attorney by
Regional Counsel/District Counsel, Internal Revenue Service,
and a copy of the request for grand jury investigation letter
has been forwarded to the Tax Division, Department of Justice;
and,
2. Regional Counsel/District Counsel has determined, based upon
the available evidence, that the case involves a situation
where an individual (other than a return preparer as defined
in Section 7701(a)(36) of the Internal Revenue Code) for a
single tax year, has filed or conspired to file multiple tax
returns on behalf of himself /herself, or has filed or
conspired to file multiple tax returns in the names of
nonexistent taxpayers or in the names of real taxpayers who do
not intend the returns to be their own, with the intent of
obtaining tax refunds to which he/she is not entitled.
In all cases, the request for grand jury investigation letter, together
with the Form 9131 and a copy of all exhibits, must be sent to the Tax Division
by overnight courier at the same time the case is referred to the United States
Attorney. In cases involving arrests or other exigent circumstances, the request
for grand jury investigation letter (together with the completed Form 9131) must
also be sent to the appropriate Criminal Enforcement Section of the Tax Division
by telefax.
Any case directly referred to a United States Attorney's office for grand
jury investigation which does not fit the above fact pattern or in which a copy
of the referral letter has not been forwarded to the Tax Division, Department of
Justice (by overnight courier), by Regional Counsel/District Counsel will be
considered an improper referral and outside the scope of this delegation of
authority. In no such case may the United States Attorney's office authorize a
grand jury investigation. Instead, the case should be forwarded to the Tax
Division for authorization.
This delegation of authority is intended to bring the authorization of
grand jury investigations of cases under 18 U.S.C. §286 and 18 U.S.C.
§287 in line with the delegation of authority to authorize prosecution of
such cases (see United States Attorneys' Manual, Title 6, 4.243). Because the
authority to authorize prosecution in these cases was delegated prior to the time
the Internal Revenue Service initiated procedures for the electronic filing of
tax returns, false and fictitious claims for refunds which are submitted to the
Service through electronic filing are not within the original delegation of
authority to authorize prosecution. Nevertheless, such cases, subject to the
limitations set out above, may be directly referred for grand jury investigation.
Due to the unique problems posed by electronically filed false and fictitious
claims for refunds, Tax Division authorization is required if prosecution is
deemed appropriate in an electronic filing case.
SHIRLEY D. PETERSON
Assistant Attorney General
Tax Division
APPROVED TO TAKE EFFECT ON: December 31, 1991
January 15, 1993
Honorable Abraham N. M. Shashy, Jr.
Chief Counsel
Internal Revenue Service
Washington, D.C. 20224
Attention: Barry J. Finkelstein
Assistant Chief Counsel (Criminal Tax)
Re: Interpretation of Tax Division Directive No. 96
Dear Mr. Shashy:
I appreciate the opportunity that I had to meet with Mr. Finkelstein and
the Deputy Regional Counsel for Criminal Tax on December 15, 1992. Face-to-face
discussions of issues that concern all of us are always helpful. In our
discussions, we left one issue involving referral of electronic filing (ELF)
cases unresolved, and I am writing to express my views on that topic.
Tax Division Directive No. 96 delegated to the United States Attorneys the
authority to authorize grand jury investigations of matters under the purview of
the Tax Division in certain, limited circumstances. Counsel in the regions have
interpreted the scope of that delegation of authority differently in situations
involving schemes that recruit individuals to file fraudulent returns in their
own names, using their own social security numbers. Tax Division Directive No.
96 provides that United States Attorneys may authorize grand jury investigations
in cases prosecutable under 18 U.S.C. 286, 287 where:
1 * * * an individual (other than a return preparer as defined in Section
7701(a)(36) of the Internal Revenue Code) for a single tax year, has filed
or conspired to file multiple tax returns on behalf of himself/herself, or
has filed or conspired to file multiple tax returns in the names of
nonexistent taxpayers or in the names of real taxpayers who do not intend
the returns to be their own, with the intent of obtaining tax returns to
which he/she is not entitled. All other cases must be referred to the Tax
Division for authorization of the grand jury investigation.
Deputy Regional Counsel Shipley and Waller have interpreted the phrase "in
the names of real taxpayers who do not intend the returns to be their own" to
exclude situations in which the target has recruited real individuals to file
returns in their names. They have reasoned that even though the information used
on the return is fictitious, the "taxpayers" have filed returns that affect those
taxpayers' accounts and that can be treated as their returns by the Service.
They have concluded that such cases fall outside the terms of Directive No. 96
and must be referred to the Tax Division to authorize the grand jury
investigation. Other regions have reasoned that the "taxpayers" involved in
such situations do not intend the returns to be their real returns, and thus
referral directly to the United States Attorneys for grand jury investigation is
permitted under Directive No. 96.
We agree with Messrs. Shipley and Waller that when real individuals file
returns using their own names and social security numbers the case falls outside
Tax Division Directive 96. The "taxpayer" intends to file a tax return in his
or her own name, and the Service must treat that filing as a "return." Thus,
such cases must be referred to the Tax Division and cannot be directly referred
to the United States Attorneys. The purpose of Directive No. 96 was to extend
to the United States Attorneys the authority to institute grand jury
investigations in cases in which they already had authority to authorize
prosecutions (18 U.S.C. 286, 287 charges in false paper return cases) and in
other false claims cases falling into that same pattern. The prior delegation
of authority did not extend to the United States Attorneys the authority to
authorize prosecution of an individual who filed a return in his or her own name,
using the correct social security number. The facts that the taxpayers are not
targets of the investigation and that the real target may know that such returns
are fictitious does not bring the case within Directive 96, and such cases may
not be referred directly to the United States Attorneys.
I would appreciate it if you would insure that my views on this subject are
communicated to the Deputy Regional Counsels for Criminal Tax. If Mr.
Finkelstein or any of the Deputy Regional Counsel have further comments or
questions on this issue, they may contact me or our ELF coordinator, Tony
Whitledge.
Sincerely,
JAMES A. BRUTON
Acting Assistant Attorney General
Tax Division
February 17, 1993
MEMORANDUM
TO: All Criminal Enforcement Attorneys
FROM: James A. Bruton
Acting Assistant Attorney General
Tax Division
SUBJECT: Tax Division Voluntary Disclosure Policy
Recent new releases by the IRS and stories in the press have raised
questions within the Division concerning the proper handling of cases in which
a prospective criminal tax defendant claims to have made a voluntary disclosure.
Notwithstanding the news stories and rumors to the contrary, the Division has not
changed its policy concerning voluntary disclosure, and cases should be evaluated
as they have in the past under the provisions of Section 4.01 of the Criminal Tax
Manual.
The Service, takes the view that, notwithstanding reports to the contrary,
it has not changed its voluntary disclosure practice. It claims that its press
releases have been issued to inform the public of the manner it has historically
applied the existing practice in referring nonfiler cases to the Department of
Justice. The goal has been to demonstrate to the public that the practice has
been applied liberally in the past and that a nonfiler interested in reentering
the tax system should not be intimidated by a theoretical threat of criminal
prosecution.
The Service's carefully worded press releases and public statements have
been construed by some member of the press and the defense bar as an "amnesty".
This is troublesome, because some inaccurate information has been and is being
disseminated to the public by the press and members of the bar that is likely to
cause confusion and could interfere with the prosecution of some criminal tax
cases. At bottom, the Service's voluntary disclosure policy remains, as it has
since 1952, an exercise of prosecutorial discretion that does not, and legally
could not, confer any legal rights on taxpayers.
We in the Tax Division should have few occasions to consider whether the
Service is properly adhering to its voluntary disclosure policy. If the Service
has referred a case to the Division, it is reasonable and appropriate to assume
that the Service has considered any voluntary disclosure claims made by the
taxpayer and has referred the case to the Division in a manner consistent with
its public statements and internal policies. As a result, our review is normally
confined to the merits of the case and the application of the Department's
voluntary disclosure policy set forth in Section 4.01 of the Criminal Tax Manual.
Cases may, however, arise in which there is some confusion over whether a
local District Counsel's office has referred a nonfiler case that seems arguably
to fall within one of the Service's press releases on voluntary disclosure or
otherwise appears to have been referred to the Department in a manner
inconsistent with our understanding of the Service's voluntary disclosure
practice. If that occurs, Tax Division reviewing attorneys should not attempt
to construe the Service's voluntary disclosure practice on their own but should
bring all such questions to the immediate attention of their Section Chiefs. If
it is determined that but for questions concerning the applicability of the
Service's policy, prosecution of the case would be authorized (i.e., the case
meets Tax Division prosecution criteria and does not violate the Division's
voluntary disclosure policy set forth in Criminal Tax Manual §4.01), the
Section Chief should forward the case (where applicable, consistent with
limitations imposed upon the disclosure of grand jury information) to the
Assistant Chief Counsel Criminal Tax (CC:CT) for that office's determination
whether the Service's referral was consistent with its internal voluntary
disclosure practice and whether the Service actually intends that the case be
prosecuted. If the Office of Assistant Chief Counsel Criminal Tax determines
that the referral was appropriate, the case should be processed by the Division
in the normal manner.
Finally, Tax Division reviewing attorneys should exercise considerable care
in drafting letters declining cases to ensure that they reflect Tax Division
policy regarding voluntary disclosures. Assistant United States Attorneys and
IRS field and National Office personnel rely on our correspondence as a
reflection of Tax Division policy, and it is, therefore, crucial that our letters
and memoranda addressed to other offices within the government accurately state
our policies.
February 12, 1993
MEMORANDUM
TO: All United States Attorneys
FROM: James A. Bruton
Acting Assistant Attorney General
Tax Division
RE: Lesser Included Offenses in Tax Cases
The purpose of this memorandum is to provide guidance concerning the
government's handling of lesser included offense issues in certain kinds of tax
cases. Two petitions for writs of certiorari involving the issue of lesser
included offenses in tax cases have recently been filed in the Supreme Court.
In Becker v. United States, No. 92-410, the defendant was convicted
of attempting to evade taxes and of failure to file tax returns for the same
years. The trial court sentenced the defendant to three years' imprisonment on
the evasion counts and to a consecutive period of 36 months' imprisonment on the
failure to file counts. The court of appeals affirmed. In his petition for a
writ of certiorari, the defendant argued that the misdemeanor of failure to file
a tax return is a lesser included offense of the felony of tax evasion and that
the Constitution prohibits cumulative punishment in the same proceeding for a
greater and lesser included offense.
In opposing certiorari on this question, the government argued that whether
cumulative punishments could be imposed for a course of conduct that violated
both 26 U.S.C. 7201 and 26 U.S.C. 7203 was solely a question of congressional
intent. The government pointed to the statutory language of Sections 7201 and
7203 as clear evidence of Congress' intent to permit cumulative punishment where
a defendant was convicted in a single proceeding of violating both Section 7201
and Section 7203. As further support for its position, the government argued
that Sections 7201 and 7203 involve separate crimes under Blockburger v.
United States, 284 U.S. 299 (1932) (and, thus, that a violation of
Section 7203 is not a lesser included offense of a violation of Section 7201).
The Becker petition is currently pending before the Supreme Court.
In McGill v. United States, No. 92-5842, the government
argued, relying on Sansone v. United States, 380 U.S. 343 (1965),
that willful failure to pay taxes (26 U.S.C. 7203) is a lesser included offense
of attempted evasion of payment of taxes (26 U.S.C. 7201). The Supreme Court
denied certiorari in McGill on December 7, 1992.
The government's position in Becker reflects an adoption of
the strict "elements" test (see Schmuck v. United States,
489 U.S. 705 (1989)) and, consequently, a change in Tax Division policy.
Accordingly, all attorneys handling tax cases should be notified of the following
ramifications of this change in policy.
1. In cases charged as Spies-evasion (i.e., failure
to file, failure to pay, and an affirmative act of evasion) under Section 7201,
it is now the government's position that neither party is entitled
to an instruction that willful failure to file (Section 7203) is a lesser
included offense of which the defendant may be convicted. Thus, if there is
reason for concern that the jury may not return a guilty verdict on the Section
7201 charges (for example, where the evidence of a tax deficiency is weak),
consideration should be given to including counts charging violations of both
Section 7201 and Section 7203 in the indictment.
The issue whether cumulative punishment is appropriate where a defendant
has been convicted of violating both Section 7201 and Section 7203 generally will
arise only in pre-guidelines cases. Under the Sentencing Guidelines, related tax
counts are grouped, and the sentence is based on the total tax loss, not on the
number of statutory violations. Thus, only in those cases involving an
extraordinary tax loss will the sentencing court be required to consider an
imprisonment term longer than five years. In those cases in which cumulative
punishments are possible and the defendant has been convicted of violating both
Sections 7201 and 7203, the prosecutor may, at his or her discretion, seek
cumulative punishment. However, where the sole reason for including both charges
in the same indictment was a fear that there might be a failure of proof on the
tax deficiency element, cumulative punishments should not be sought.
2. Similarly, in evasion cases where the filing of a false return
(Section 7206) is charged as one of the affirmative acts of evasion (or the only
affirmative act), it is now the Tax Division's policy that a lesser included
offense instruction is not permissible, since evasion may be established without
proof of the filing of a false return. see Schmuck v. United
States, 489 U.S. 705 (1989) (one offense is necessarily included in
another only where the statutory elements of the lesser offense are a subset of
the elements of the charged greater offense). Therefore, as with
Spies-evasion cases, prosecutors should consider charging both
offenses if there is any chance that the tax deficiency element may not be proved
but it still would be possible for the jury to find that the defendant had
violated Section 7206(1). But where a failure of proof on the tax deficiency
element would also constitute a failure of proof on the false return charge,
nothing generally would be gained by charging violations of both Section 7201 and
7206.
Where the imposition of cumulative sentences is possible, the prosecutor
has the discretion to seek cumulative punishments. But where the facts
supporting the statutory violations are duplicative (e.g., where the only
affirmative act of evasion is the filing of the false return), separate
punishments for both offenses should not be requested.
3. Although the elements of Section 7207 do not readily appear to be a
subset of the elements of Section 7201, the Supreme Court has held that a
violation of Section 7207 is a lesser included offense of a violation of Section
7201. See Sansone v. United States, 380 U.S. at 352; Schmuck
v. United States, 489 U.S. at 720, n.11. Accordingly, in an appropriate
case, either party may request the giving of a lesser included offense
instruction based on Section 7207 where the defendant has been charged with
attempted income tax evasion by the filing of a false tax return or other
document.
4. Adhering to a strict "elements" test, the elements of Section 7207
are not a subset of the elements of Section 7206(1). Consequently, it is now the
government's position that in a case in which the defendant is charged with
violating Section 7206(1) by making and subscribing a false tax return or other
document, neither party is entitled to an instruction that willfully
delivering or disclosing a false return or other document to the Secretary of the
Treasury (Section 7207) is a lesser included offense of which the defendant may
be convicted. Here, again, if there is a fear that there may be a failure of
proof as to one of the elements unique to Section 7206(1), the prosecutor may
wish to consider including charges under both Section 7206(1) and Section 7207
in the same indictment, where such charges are consistent with Department of
Justice policy regarding the charging of violations of 26 U.S.C. 7207. Where
this is done and the jury convicts on both charges, however, cumulative
punishments should not be sought. In all other situations, the decision to seek
cumulative punishments is committed to the sound discretion of the prosecutor.
5. Prosecutors should be aware that the law in their circuit may be
inconsistent with the policy stated in this memorandum. See e.g.,
United States v. Doyle, 956 F.2d 73, 74-75 (5th Cir. 1992);
United States v. Boone, 951 F.2d 1526, 1541 (9th Cir. 1991);
United States v. Kaiser, 893 F.2d 1300, 1306 (11th Cir. 1990);
United States v. Lodwick, 410 F.2d 1202, 1206 (8th Cir.), cert.
denied, 396 U.S. 841 (1969). Nevertheless, since the government has now
embraced the strict "elements" test and taken a position on this issue in the
Supreme Court, it is imperative that the policy set out in this memorandum be
followed.
6. In tax cases, questions concerning whether one offense is a lesser
included offense of another may not be limited to Title 26 violations, but may
also include violations under Title 18 (i.e., assertions that a Title 26 charge
is a lesser included violation of a Title 18 charge or vice-versa). The policy
set out in this memorandum will also govern any such situations -- that is, the
strict elements test of Schmuck v. United States, 489 U.S. 705,
should be applied.
These guidelines will remain in effect unless or until the Supreme Court
grants certiorari in Becker and rules inconsistently with the newly
adopted policy. Prosecutors are encouraged to consult with the Tax Division
whenever they are faced with a case raising questions addressed in this
memorandum by calling the Criminal Appeals and Tax Enforcement Policy Section at
(202) 514-3011.
March 12, 1993
MEMORANDUM
To: All United States Attorney
From: James A. Bruton
Acting Assistant Attorney General
Tax Division
Re: Policy Change in Tax Cases Involving
Lesser Included Offenses
On February 12, 1993, the Tax Division circulated a memorandum providing
guidelines concerning the government's handling of lesser included offense issues
in certain kinds of tax cases. In that memorandum, we referred to Becker
v. United States (S. Ct. No. 92-410), where defendant sought certiorari
on the ground that the misdemeanor of failure to file a tax return (26 U.S.C.
§ 7203) is a lesser included offense of the felony of attempted tax evasion
(26 U.S.C. §7201) and that cumulative punishment for the greater and lesser
offenses is therefore unconstitutional. The government opposed certiorari,
arguing that Congress intended to authorize cumulative punishment for the two
offenses and, in any event, that the willful failure to file a tax return is not
a lesser included offense of attempted tax evasion. As we noted in our earlier
memorandum the latter argument reflects an adoption of the strict "elements" test
set forth in Schmuck v. United States, 489 U.S. 705 (1989), and,
consequently, a change in Tax Division policy.
On March 8, 1993, the Supreme Court denied the petition for a writ of
certiorari in Becker. Accordingly, there will no change in the
guidelines set forth in the February 12 memorandum and they will remain in effect
until further notice.
Prosecutors are encourage to consult with the Tax Division whenever they
are faced with a tax case raising questions regarding lesser included offenses
by calling the Criminal Appeals and Tax Enforcement Policy Section at (202) 514-
3011.
DEPARTMENT OF JUSTICE
TAX DIVISION
DIRECTIVE NO. 99
Re: Clarification of Tax Division Policy Concerning the Charging of Tax
Crimes as Mail Fraud, Wire Fraud, or Bank Fraud (18 U.S.C.
§§ 1341, 1343, 1344) or as Predicates to a RICO Charge or
as the Specified Unlawful Activity Element of a Money Laundering
Offense
The purpose of this directive is to clarify Tax Division policy concerning
the charging of tax crimes as mail fraud, wire fraud, or bank fraud (18 U.S.C.
§§ 1341, 1343, 1344), or as predicates to a RICO charge or as the
specified unlawful activity element of a money laundering offense. Although
primarily concerned with tax crimes charged as mail fraud, [FN1] wire fraud, or
bank fraud, either directly or as a basis for some other charge, the policy
stated herein is equally applicable to tax crimes charged under any statute --
be it one found in Title 26 or one found in Title 18 or any other title of the
United States Code.
The extent of Tax Division jurisdiction in the criminal arena is set out
in section 70(b), Subpart N, Part O of Title 28 of the Code of Federal
Regulations (28 C.F.R. § 0.70(b)). That section provides that, with a few
specified exceptions, all "[c]riminal proceedings arising under the internal
revenue laws" * * * "are assigned to and shall be conducted, handled, or
supervised by, the Assistant Attorney General, Tax Division * * *." Tax Division
jurisdiction, thus, depends not on the particular criminal statute utilized in
charging the defendant, but on the nature of the underlying conduct. Whenever
the violation can be said to be one arising under the internal revenue laws, Tax
Division authorization is required before bringing any charges, irrespective of
the statute or statutes under which they are brought. [FN2] In general, an
offense can be said to arise under the internal revenue laws when it involves (1)
an evasion of some responsibility imposed by the Internal Revenue Code, (2) an
obstruction or impairment of the Internal Revenue Service, or (3) an attempt to
defraud the Government or others through the use of mechanisms established by the
Internal Revenue Service for the filing of internal revenue documents or the
payment, collection, or refund of taxes.
In particular, this means that the authorization of the Tax Division is
required before charging mail, wire or bank fraud, either independently or as
predicate acts to a RICO charge or as the specified unlawful activity element of
a money laundering charge, when the mailing, wiring, or representation charged
is used to promote or facilitate any criminal violation arising under the
internal revenue laws. In the exercise of its prosecutorial discretion, the Tax
Division will grant such authorization only in exceptional circumstances. As a
general rule, the use of such charges will not be approved (1) when the only
mailing charged is a tax return or other internal revenue form or document, or
a tax refund check; (2) when the only wire transmission is a transmission of tax
return information to the IRS or the transmission of a refund to a bank account
by electronic funds transfer; or (3) when the mailing, wiring, or representation
charged is only incidental to a violation arising under the internal revenue laws
(for example, although the mailing of a set of instructions to a cohort in a tax
shelter scheme might support a mail fraud charge, such a mailing would be
considered incidental to the primary purpose of the scheme which is to defraud
the United States by abetting the filing of false income tax returns).
Normally, violations arising under the internal revenue laws should be
charged as tax crimes and the specific criminal law provisions of the Internal
Revenue Code should form the focus of prosecutions when essentially tax law
violations are involved, even though other crimes may have been committed. [FN3]
Thus, for example, the filing of a false tax return, which almost invariably
involves either a mailing or, in the case of an electronically-filed return, an
interstate wiring, is a tax crime chargeable generally under 26 U.S.C. 7206(1)
(if the violator is the taxpayer), 26 U.S.C. 7206(2) (if the violator is, for
example, a tax return preparer or promoter of a fraudulent tax scheme), or under
18 U.S.C. 287. Moreover, in the exercise of its prosecutorial discretion, the
Tax Division will only authorize tax charges or false claims charges, and will
not authorize mail, wire or bank fraud charges, where the United States is
defrauded in a revenue raising capacity and is the only one defrauded. Tax
charges and the false claims statutes are the established means for litigating
such criminal tax matters.
A mail, wire, or bank fraud charge arising out of a scheme to defraud the
Government through the use of the revenue laws might be appropriate in addition
to, but never in lieu of, other charges based on violations of the internal
revenue laws, however, where the Government has also lost money in a non-revenue
raising capacity or individuals or other entities have been the financial victims
of the crime. The bringing of such charges will seldom, if ever, be justified
by the mere desire to see a more severe term of imprisonment or fine imposed.
Rather, they must serve some federal interest not adequately served by the
bringing of traditional tax charges. Each individual case will be reviewed to
determine whether it warrants the use of charges in addition to the appropriate
Title 26 charges or Title 18 charges (i.e., §§ 286, 287, 371, 1001).
For example, in an electronic filing fraud, a bank making a refund
anticipation loan for the amount of the fictitious refund claim may be the
financial victim in the scheme, and bank fraud charges, drafted to reflect that
the bank was victimized by the scheme, may be appropriate. Similarly, in motor
fuel excise tax evasion schemes and fraudulent tax shelter schemes in which
individuals or entities other than the United States are demonstrably victimized
in a direct, substantial and measurable way that will be charged, the use of mail
or wire fraud charges may also be appropriate in a particular case.
A similar policy will be followed with respect to RICO or money laundering
charges predicated on mail, wire, or bank fraud violations which involve
essentially only a federal tax fraud scheme. Tax offenses are not predicate acts
for RICO or specified unlawful activities for money laundering offenses -- a
deliberate Congressional decision -- and converting a tax offense into a RICO or
money laundering case through the charging of mail, wire or bank fraud based on
a violation of the internal revenue laws as the underlying illegal act could be
viewed as circumventing Congressional intent unless circumstances justifying the
use of a mail, wire or bank fraud charge are present.
A United States Attorney who wishes to charge a RICO violation in any
criminal matter arising under the revenue laws must obtain the authorization of
the Tax Division prior to alleging the predicate act, [FN4] and must obtain the
authorization of the Organized Crime and Racketeering Section of the Criminal
Division prior to charging a RICO violation. The Tax Division and the Organized
Crime and Racketeering Section will approve the use of the RICO statute in
revenue matters as appropriate. In addition, traditional tax charges must also
be brought, as noted above, and the prosecution package must allow for
forfeitures under the Internal Revenue Code.
Tax Division authorization is also required before a money laundering
charge may be brought where the specified unlawful activity is based on a
violation arising under the internal revenue laws. [FN5] The Tax Division will
approve the use of mail fraud, wire fraud, or bank fraud as the specified
unlawful activity only in cases that meet the requirements set forth in this
Directive. When a request is made to include such a money laundering charge in
an indictment, the Tax Division will consult with or refer the case to the Money
Laundering Section of the Criminal Division, as the case may require, prior to
authorizing the money laundering charges or the use of one of the fraud statutes
as the specified unlawful activity. See USAM 9-105.00, as amended by bluesheet
dated October 1, 1992. The Tax Division should be consulted early in any
investigation to determine whether mail fraud, wire fraud, or bank fraud charge
are appropriate.
FN 1. Tax Division policy concerning the charging of tax crimes as mail fraud
violations, either independently or as predicate acts underlying a RICO charge,
is set out in Section 6-4.211(1) of the United States Attorneys' Manual,
Filing False Tax Returns: Mail Fraud Charges or Mail Fraud Predicates for
RICO. This directive clarifies that policy and explains how it fits into
the overall Tax Division jurisdiction over criminal proceedings arising under the
internal revenue laws.
FN 2. The authorization of the Tax Division is also required in any case which
involves parallel state and federal tax violations and the charges are based on
the parallel state tax violations.
FN 3. Pursuant to 28 C.F.R. 0.70(b), the Tax Division has traditionally
authorized prosecution of certain crimes under various provisions of Title 18
(e.g., 18 U.S.C. §§ 286, 287, 371, and 1001). While Title 26 offenses
are the preferred vehicle for criminal tax prosecutions, charges for offenses
arising under the internal revenue laws have never been limited to that title.
FN 4. Tax Division authorization is also required when the predicate act is based
on a state tax violation.
FN 5. This is in addition to the requirement that Tax Division authorization is
required for any prosecution under 18 U.S.C. § 1956(a)(1)(A)(ii).
JAMES A. BRUTON
Acting Assistant Attorney General
Tax Division
APPROVED TO TAKE EFFECT ON: March 30, 1993
June 3, 1993
MEMORANDUM
TO: All CES Attorneys
FROM: Stanley F. Krysa
Director
Criminal Enforcement Sections
SUBJECT: Civil Settlements in Plea Agreements
It is not unusual for the taxpayer, in the course of negotiating a plea
agreement, especially in cases arising from a grand jury investigation, to seek
to include a civil settlement for the years involved. Very often, in such a
situation, the Internal Revenue Service is agreeable to settlement. The Internal
Revenue Service often believes the money to be paid is likely all it could ever
realize because of Rule 6(e) restrictions and scarce audit resources. The Tax
Division, however, has long followed a policy against approving plea agreements
that include such global settlements. This policy wisely reflects the
substantial differences between criminal and civil tax litigation.
Criminal tax investigations are frequently narrow in focus and
substantially more targeted than any civil audit. For example, a criminal
investigation centering on a complex return will normally focus on large items
of unreported income or improper deductions that are easily provable rather than
complex tax adjustments that may result in further taxes due, which, either
because of difficulties of proof or the uncertain state of the substantive tax
law, cannot form the focus of a criminal case.
In a civil tax setting, the determination by the Internal Revenue Service
that an item of income was realized or that a deduction claimed was not allowable
constitutes a prima facie case for inclusion or disallowance, as the case might
be, and the taxpayer bears the burden of proving that determination wrong.
Accordingly, reasonable inferences from known facts can support a finding of
civil liability, but often would not provide a basis for indictment.
The Tax Division cannot authorize a plea agreement in a case that, by its
terms, bars the Government from a further examination of the target's civil tax
liabilities. We can and will, however, approve acceptance of a plea that
includes certain civil admissions by the target. Thus, we would be willing to
authorize a plea agreement in which the target would make the following civil
admissions:
1. An admission by the defendant that he received enumerated amounts of
unreported income or claimed enumerated amounts of illegal deductions for years
set forth in the plea agreement.
2. A stipulation by the target that he was liable for the fraud penalty
imposed by the Code (formerly Section 6653 and now Section 6663) on the
understatements of liability for the years involved.
3. An agreement by the target that he or she will file, prior to the
time of sentencing, initial or amended personal returns for the years subject to
the above admissions, correctly reporting all previously unreported income or
proper deductions, will provide the Internal Revenue Service information, if
requested, regarding the years covered by the returns, and will pay at sentencing
all additional taxes, penalties and interest owing. Such an agreement should
also include a provision pursuant to which the target agrees that he or she will
promptly pay any additional amounts determined to be owing with respect to that
return because of computational errors.
4. An agreement by the target that he will not thereafter file any
claims for refund of taxes, penalties or interest for amounts attributable to the
return filed incident to the plea.
As a final note, all such provisions must be drafted with considerable
care. A plea agreement is an undertaking by the United States and, if not
properly crafted, could be construed to foreclose the civil side of the Internal
Revenue Service from examining and making any civil audit adjustments to the
returns involved after they are filed.
In reviewing or negotiating any proposed plea agreements the above
principles should be applied. If you have any questions contact your respective
Chiefs. All plea agreements negotiated by you should be in writing. They should
be submitted for review and approval by the Chief before executed.
October 15, 1997
MEMORANDUM
TO: ALL UNITED STATES ATTORNEYS
ALL CRIMINAL CHIEFS
ALL CIVIL CHIEFS
FROM: Loretta C. Argrett
Assistant Attorney General
SUBJECT: Press Releases in Cases Involving the IRS
ACTION REQUIRED: Forward, preferably via fax, a copy of each press
release in criminal tax cases to the Deputy Assistant
Attorney General (Criminal), Tax Division, P.O. Box 501,
Washington, D.C. 20044. FAX (202) 514-5479.
DUE DATE: None
RESPOND TO: See Below
CONTACT PERSON: Bob Lindsay
(202) 514-3011
Summary
The purpose of this message is to provide guidance to United States
Attorneys' offices about the use of press releases publicizing indictments,
convictions, and sentences in criminal tax and other IRS-investigated cases, in
light of a recent circuit court opinion and several earlier decisions. [This
guidance also applies to civil tax cases.]
This recent decision has increased the confusion about the information that
may be released in tax cases. On August 21, 1997, the United States Court of
Appeals for the Fifth Circuit ruled that the prohibitions against the disclosure
of tax returns and return information from IRS or DOJ files (26 U.S.C. §
6103) continue to apply even if the information has been made public in an
indictment or court proceeding. Johnson v. Sawyer, 5th
Cir. No. 96-20667 ____F.3d___.[FN1] The Fifth Circuit concluded that "[i]f the
immediate source of the information claimed to be wrongfully disclosed is tax
return information ..., the disclosure violates § 6103, regardless
of whether that information has been previously disclosed (lawfully) in a
judicial proceeding and has therefore arguably lost its taxpayer
confidentiality." Several other circuits have addressed this issue, often
reaching conflicting conclusions.
FN1. 120 F.3d 1307 (5th Cir. 1997).
The practical effect of these holdings is that you should exercise caution
when preparing tax press releases. Press releases cannot be written with
information from IRS or the prosecutor's files, but must be based on, and contain
only, public record information. Thus, a press release announcing an indictment
should contain only information set forth in the publicly-filed indictment and
indicate that the source of the information is the indictment. Similarly, a
press release discussing a conviction should be based solely on information made
public at the trial or in pleadings publicly filed in the case, and should
indicate that the source of the information is the public court record.
Background
Section 7431 of the Internal Revenue Code (26 U.S.C.) authorizes a civil
action for damages against the United States for the unauthorized disclosure of
returns or return information. The minimum damage award for each negligent
disclosure is $1,000. The statute also provides for punitive damages for any
unauthorized disclosures that are due to gross negligence or willfulness. A
willful disclosure of returns or return information in a manner not authorized
by Section 6103 also is punishable as a felony under 26 U.S.C. 7213.
"Return information" is defined in Section 6103 of the Code to include
virtually all information collected or gathered by the IRS with respect to a
taxpayer's tax liabilities, or any investigation concerning such liability. It
prohibits any disclosure of either tax returns themselves or return information,
except as specifically authorized by that section. The statute authorizes the
IRS to disclose tax returns and return information to the Department of Justice
for use in criminal and civil tax cases on its own initiative (Section 6103(h)(2)
and (3)) and for use in non-tax criminal cases pursuant to a court order (Section
6103(i)(1)). Sections 6103(h)(4) and 6103(i)(4) permit the Department to
disclose such returns or return information in civil or criminal judicial
proceedings relating to tax administration and in non-tax criminal cases and
civil forfeiture cases, respectively.
Several circuits have addressed the question of when the non-disclosure
restrictions of Section 6103 no longer apply to return information. The Ninth
Circuit has held that once return information has been made public in a judicial
proceeding, the non-disclosure restrictions no longer apply to that information.
Lampert v. United States, 854 F.2d 335 (9th Cir. 1988). The Sixth Circuit
has held that the return information disclosed by the filing of a notice of
federal tax lien loses it confidentiality and is not protected by Section 6103,
but emphasized that a notice of federal tax lien "is designed to provide public
notice and is thus qualitatively different from disclosures made in judicial
proceedings, which are only incidentally made public." Rowley v. United
States, 76 F.3d 796, 801 (6th Cir. 1996). In an unpublished opinion, the
Third Circuit has held that a press release did not contain unauthorized
disclosures of return information because the information in the press release
was public information. Barnes v. United States, 73 A.F.T.R. 2d (PH) .
94-581, at 1160 (3rd Cir. 1994). On the other hand, the Tenth and the Fourth
Circuits have held that public disclosure of return information does not lift the
non-disclosure bar on further disclosure of such information. Rodgers v.
Hyatt, 697 F.2d 899 (10th Cir. 1983); Mallas v. United States, 993
F.2d 1111 (4th Cir. 1993). While the Seventh Circuit did not resolve the issue
of whether return information disclosed in court loses its confidentiality, it
concluded that information in a court opinion is not return information and, when
the source of the information disclosed is the court opinion, no violation has
occurred. Thomas v. United States, 890 F.2d 18 (7th Cir. 1989) In
Johnson v. Sawyer, supra, the Fifth Circuit followed "the approach
of the Fourth and Tenth Circuits, modified by the Seventh Circuit's "source'
analysis." Under the Fifth Circuit's analysis, Section 6103 is violated only
when tax return information -- which is not a public record open to public
inspection -- is the immediate source of the information claimed to be wrongfully
disclosed.
The starting point in determining what information may be included in a
press release publicizing an indictment, conviction, or sentence is
acknowledgment that the Section 6103 prohibitions on disclosure are source-based.
That is, the statute bars the public disclosure of information taken directly
from IRS files, or returns and return information that have been accumulated in
Department files as part of an investigation or prosecution. It does not,
however, ban the disclosure of information that is taken from the public court
record.
Thus, for example, the statute, as interpreted by the majority of the
circuits, prohibits the disclosure from IRS or Department files of a tax-crime
defendant's name, or the fact that he was under investigation or has been
indicted for a particular tax crime. To the extent that this same information
has been placed in the public court record (e.g., included in an
indictment or other pleading), its dissemination from the
public court record does not violate the statute.
Recommendations
United States Attorneys may (and should) continue to issue press
releases in criminal tax cases. In light of the judicial interpretations of
Section 6103 discussed above, however, a press release should contain only
information the immediate source of which is the public record of
the judicial proceeding, and the press release should attribute the information
to the public court record.
A post-indictment press release may relate information set forth in the
publicly-filed indictment, and should state that the information is from the
publicly-filed indictment (for example: "according to the indictment, during the
years 1993 and 1994, John Doe received income in excess of $100,000 which he
failed to report on his income tax returns. The indictment further charges .
. ."). Facts (including minor details) that do not appear in the indictment
(such as the defendant's age, full name, and address) should not be included in
the press release unless they are obtained from and attributed
to public records.
Post-conviction press releases should make it clear that the information
being released came from the publicly-filed indictment, public filings in the
case, or public testimony. Care should be taken to avoid statements that are
ambiguous as to source. Statements that could be based on information in IRS or
Department files should not be made unless the information in the statements are
obtained from and attributed to specific public sources. (For example, the
source of the facts in this statement -- "Doe shielded his income in offshore
bank accounts" -- could be from the IRS special agent's files, trial testimony,
or the indictment. If the source of the facts in the statement is trial
testimony, the indictment, or other public record, disclosure is permissible.)
Thus, statements of facts that could have come from the IRS files should not be
made unless attributed to a specific public source.
Assistant United States Attorneys and Public Information Officers issuing
a press release or responding to press inquiries should secure the source
document from the public record and make it clear that the immediate source of
the information they are providing is the public court record, and identify the
source.
These rules apply to the use in press releases of any return information
provided to the Department in any criminal [or civil] case. United State
Attorneys should apply these guidelines in all cases in which tax return
information has been made available to the attorney for the Government. Return
information obtained for use in non-tax criminal cases and related civil
forfeiture cases pursuant to a Section 6103(i) order is subject to the same
disclosure restrictions as return information provided by the IRS for use in
criminal tax cases. In addition, return information provided to the United
States Attorney's office by the IRS in money laundering or narcotics cases that
the IRS has determined are "related to tax administration," pursuant to Section
6103(b)(4), is also subject to the same non-disclosure rules.
Request
The Tax Division requests that a copy of each press release in a criminal
tax case be sent to the Deputy Assistant Attorney General (Criminal), Tax
Division, P.O. Box 501, Washington, D.C. 20044, preferably by faxing the release
to (202) 514-5479. The Division is actively seeking to obtain more publicity for
successful results in criminal tax cases and maintains a tax-interested press
list for faxing press releases reflecting favorable outcomes in such cases. The
Division would be happy to forward press releases from individual United States
Attorneys' offices to those in the media who have shown an interest in such
matters, thereby widening the publicity given to successful tax prosecutions.
December 4, 1998
MEMORANDUM
To: All Tax Division Criminal Enforcement
Section Attorneys
Assistant United States Attorneys
From: Loretta C. Argrett /s/
Assistant Attorney General
Subject: Inclusion of State Tax Loss in Tax Loss Computation for Federal
Tax Offenses Under the Sentencing Guidelines
Questions have been raised concerning whether state tax crimes can be
treated as part of the relevant conduct for sentencing purposes in federal tax
cases. For the reasons set out below, we believe that state tax offenses arising
out of the same scheme or course of conduct as federal tax crimes constitute
relevant conduct under USSG §1B1.3 and may be included in the calculation
of the base offense level in appropriate cases.
Under the relevant conduct guideline, USSG §1B1.3, "relevant conduct"
includes, inter alia, all acts that were part of the same course of
conduct or common scheme or plan and all harm that resulted from those acts.
Nothing in the language of the guideline limits relevant conduct to federal
offenses, or harm to the United States or other victims of federal offenses.
Moreover, the Ninth Circuit held in United States v. Newbert, 952 F.2d
281, 284 (9th Cir. 1991), cert. denied, 503 U.S. 997 (1992), that
nonfederal offenses may be considered for sentence enhancement under §1B1.3.
Similarly, the Eleventh Circuit has held that state offenses that were part of
the same course of conduct as federal offenses and part of a common scheme or
plan must be considered relevant conduct under §1B1.3(a)(2). United
States v. Fuentes, 107 F.3d 1515, 1526 (11th Cir. 1997).
Fuentes involved USSG §5G1.3, which relates to imposition of
a sentence on a defendant subject to an undischarged term of imprisonment. The
commentary to that guideline indicates that the Sentencing Guidelines contemplate
the inclusion of state offenses in the determination of the base offense level
for an offense. An example set out in Application Note 2 includes the following:
The defendant is convicted of a federal offense charging the sale of
30 grams of cocaine. Under § 1B1.3 (Relevant Conduct), the
defendant is held accountable for the sale of an additional 15 grams
of cocaine, an offense for which the defendant has been convicted
and sentenced in state court.
Thus, there is ample support for including tax loss from state tax offenses
in calculating the total tax loss in a federal tax case. Indeed, it could be
argued that, in light of the language of USSG § 1B1.3 that "the base offense
level . . . shall be determined on the basis of... all acts and omissions . . .
that were part of the same course of conduct or common scheme or plan as the
offense of conviction," state tax losses must be included as relevant conduct in
the calculation of base offense level for a federal tax violation where they
qualify as part of the same course of conduct or common scheme or plan. See
United States v. Fuentes, 107 F.3d at 1523. In fact, if it is not included,
it could result in dissimilarly situated defendants being treated similarly --
a result clearly at odds with the spirit of the Guidelines. (United States
Sentencing Commission, Guidelines Manual, Ch. 1, Pt. A, 3.) For example,
one defendant might evade federal excise taxes on fuel but pay the state excise
tax, while another defendant evades both.[FN1] If the state tax loss is not
taken into account, both of these defendants will end up with the same sentence
as long as the federal loss is the same.
FN1. This is not that far-fetched an example. There has been at least one
case where the defendants evaded the federal excise tax, but paid the
state excise tax.
The government argued this position -- that state tax offenses arising out
of the same scheme or course of conduct as federal tax crimes constitute relevant
conduct under USSG § 1B1.3 and should be included in the calculation of the
base offense level -- before the Fifth Circuit in United States v. Powell,
124 F.3d 655 (1997), a case involving federal and state excise taxes. The court
accepted our position, holding that state taxes evaded by the defendant qualified
as "relevant conduct" that could be included in "tax loss" under Sentencing
Guidelines in sentencing defendant for evading federal fuel excise taxes, where
evasion of state and federal taxes occurred at same time, was based on same
conduct, and was not isolated or sporadic. 124 F.3d at 665-66.
Prosecutors, therefore, may seek inclusion of state tax loss in appropriate
cases -- e.g., where the state tax loss is clearly part of the same course
of conduct or common scheme or plan, where the loss is easily ascertainable, and
where the loss is clearly due to criminal conduct. Assistant United States
Attorneys and Tax Division trial attorneys are encouraged to consult with the
Criminal Appeals and Tax Enforcement Policy Section of the Tax Division ((202)
514-3011) prior to sentencing when they are faced with a case where the defendant
has also committed state offenses which could be considered part of the same
course of conduct or common scheme or plan as the offense of conviction.
We recognize that there may be problems of proof, and prosecutors should
be aware of these possible problems. First, evidence of state tax loss may simply
be unavailable in the absence of cooperation from state officials. Even where
there is cooperation, it still may be difficult to prove the state loss without
slowing down the sentencing process or unnecessarily complicating it.
In addition, guideline provisions simplifying the determination of tax loss
will probably be unavailable. Under USSG §2T1.1(c)(1), tax loss is 28% of
the magnitude of a particular false statement in a return or other tax document
(34% in the case of a corporation) unless a more accurate determination of tax
loss can be made; and under USSG §2T1.1(c)(2), tax loss is 20% of the amount
of gross income that should have been reported by a defendant who has failed to
file a return (25% in the case of a corporation) unless a more accurate
determination of tax loss can be made. The applicable percentages in those
guidelines are loosely based on federal tax rates and bear no relation to losses
under state tax rates. Where there are problems of proof, prosecutors may, in the
exercise of their discretion, decide not to seek inclusion of state tax loss in
the tax loss computation.
A final matter bearing note is that there may be cases in which the ability
to treat state tax offenses as relevant conduct would effectively limit the
defendant's federal sentence. Under §5G1.3(a) of the Guidelines, if a
defendant commits an offense while serving a term of imprisonment, the sentence
for his new offense must run consecutively to his undischarged term of
imprisonment. However, under §5G1.3(b), if §5G1.3(a) is not applicable
and an undischarged term of imprisonment has been fully taken into account in the
determination of the offense level for a defendant's new offense, the sentence
for the new offense must be imposed to run concurrently with the undischarged
term of imprisonment. Section 5G1.3(c) provides that in any other case, the
sentence for the new offense may be imposed to run concurrently, partially
concurrently, or consecutively to the prior term to achieve a reasonable
punishment for the new offense. In United States v. Fuentes, supra,
the court held that where subsection (a) of §5G1.3 does not apply, "the
'fully taken into account' requirement of §5G1.3(b), is satisfied when the
undischarged term resulted from an offense that §1B1.3 requires to be
included as relevant conduct, regardless of whether the sentencing court actually
took that conduct into account." 107 F.2d at 1522; see also 107 F.2d at
1524. Thus, under Fuentes, if state offenses for which a defendant was
serving a sentence constituted relevant conduct, the sentencing court would be
required to impose a concurrent sentence even if the state offenses were not used
in the calculation of tax loss. However, we do not think the holding in
Fuentes on the application of §5G1.3, even if adopted by other
circuits, will have much impact on tax cases: to our knowledge, defendants in
most tax cases are not often serving state sentences for related state tax
offenses. Nevertheless, prosecutors should be aware of Fuentes.
DEPARTMENT OF JUSTICE
TAX DIVISION DIRECTIVE
NO. 111
EXPEDITED PLEA PROGRAM
On March 1, 1986, the Tax Division, Department of Justice, and the Internal
Revenue Service implemented the Simultaneous Plea Program. This program was
designed to accommodate both the interests of the taxpayer who desired a speedy
resolution to a criminal tax investigation and the interests of the government
in obtaining a fair resolution of the case with a minimum expenditure of
investigative and prosecutorial resources.
By memorandum dated February 25, 1986, the Acting Assistant Attorney
General of the Tax Division notified the United States Attorneys of this program
and described its operation. After reviewing the operation of the program since
its inception in 1986, the Tax Division has decided to modify the program in
several ways and rename it to more accurately reflect its function. This
Directive is intended to explain those changes and formalize the new procedures
for administering the program.
1. The program is designed to expedite the handling of criminal tax cases
where the taxpayer, through counsel, indicates during the course of an
administrative investigation being conducted by the Criminal Investigation
Division, Internal Revenue Service, an interest in entering a guilty plea
to some or all of the charges and years under investigation. The program
is intended to dispose expeditiously of the entire case. It is not
intended to be utilized to limit the taxpayer's exposure by curtailing or
limiting the Service's investigation.
2. This program applies only to administratively investigated cases involving
legal source income.
3. The program is available only to taxpayers represented by counsel.
4. The request for initiation of any plea discussions or negotiations must be
originated by a taxpayer who is represented by counsel; Criminal
Investigation Division shall not initiate the subject of plea discussions.
5. The taxpayer must be informed that the Internal Revenue Service has no
authority to engage in plea negotiations and that only the Department of
Justice can engage in such negotiations.
6. Taxpayer's counsel must provide a written statement to Criminal
Investigative Division confirming the taxpayer's desire to engage
immediately in plea negotiations with the Department of Justice regarding
the charges under investigation.
7. The taxpayer must be informed that the taxpayer will be required to plead
to the most significant violation involved, consistent with the Tax
Division's Major Count Policy.
8. The Internal Revenue Service must take precautions to insure that
information furnished by the taxpayer, prior to formal plea discussions
with the Department of Justice, will not be foreclosed from future use
under the restrictions of Rule 11(e)(6) of the Federal Rules of Criminal
Procedure in the event that plea negotiations fail.
9. The Internal Revenue Service must obtain sufficient evidence to constitute
a referable matter to the Tax Division.
Although the case does not have to be as fully developed as one that does
not go through the Expedited Plea Program, any referral to the Tax
Division for review of the proposed plea under the program must reflect
the following:
a. That, for the years implicated in the investigation, the taxpayer
has provided all records in his or her possession, or to which the
taxpayer has access, to the Service and the investigating agent has
reviewed those records with sufficient particularity to insure that
there are no significant undiscovered issues or tax losses in the
case that have not been taken into account in assessing the merits
of the referral;
b. A description of the nature and extent of the records supplied and
the specific conclusions reached by the agent with respect to them;
c. That the taxpayer has submitted to an interview, the substance of
the interview, and the agent's satisfaction with the nature and
extent of the taxpayer's cooperation;
d. That the agent has secured and reviewed the taxpayer's returns for
all years subsequent to the years under investigation (and any open
prior years) and has addressed any issues raised by those returns in
assessing the merits of the referral;
e. The agent has inquired, and obtained the details, if appropriate, as
to any other (open or closed) Federal, state, or local
investigations relating to the taxpayer.
10. If District Counsel, after receipt of the Special Agent's Report (SAR),
concludes that prosecution is warranted, District Counsel will refer the
case to the Tax Division, with a recommendation for prosecution based on
the foregoing requirements. Such referral to the Division shall include
all exhibits to the SAR, and the evidentiary basis for the referral.
a. District Counsel will telephone the Tax Division liaison attorney in
the appropriate Criminal Enforcement Section to advise that a
referral is being made to the Tax Division;
b. The Tax Division liaison attorney will contact District Counsel by
telephone to acknowledge receipt of the referral.
11. No plea negotiations may be undertaken until prosecution is
authorized by the Tax Division.
12. Within 30 days after receipt of the referral from District Counsel, the
Tax Division will either authorize prosecution consistent with the
proposed plea bargain or disapprove of the negotiation of such a plea.
a. If the proposed plea is not authorized, the Tax Division will notify
the taxpayer's counsel in writing that the case is being returned to
the Internal Revenue Service, and all exhibits and files submitted
will be returned to the Service;
b. If the proposed plea is authorized, the Tax Division will refer all
documents to the appropriate United States Attorney's office who may
then undertake plea negotiations with the taxpayer and may accept a
plea to the specified major count without further authorization from
the Tax Division. If the United States Attorney's office desires to
accept a plea to any count other than the specified major count, the
approval of the Tax Division is required.
13. If plea negotiations are unsuccessful, the United States Attorney's office
will notify in writing both the taxpayer's counsel and the Tax Division
that the case is being returned to the Internal Revenue Service.
a. All files and exhibits submitted to the United States Attorney's
office will be returned to the Service;
b. No information or evidence submitted to the United States Attorney's
office by the taxpayer and/or counsel during the course of plea
negotiations will be sent to the Internal Revenue Service unless the
taxpayer expressly authorizes the Service's use of such information.
In such a case, a written waiver of the restrictions of Federal Rule
of Criminal Procedure 11(e)(6) should be obtained.
14. All procedures and requirements for administering this program that have
heretofore been agreed to between the Internal Revenue Service and the
Tax Division remain in force unless inconsistent with any provision of
this Directive.
LORETTA C. ARGRETT
ASSISTANT ATTORNEY GENERAL
TAX DIVISION
DATED: 2/11/99
DEPARTMENT OF JUSTICE
TAX DIVISION
DIRECTIVE NO. 115
Delegation of Authority Relating to Criminal Tax Cases
By virtue of the authority vested in me by Part O, Subpart N of Title 28
of the Code of Federal Regulations, particularly Section 0.70, the delegation of
authority with respect to criminal tax matters within the jurisdiction of the Tax
Division is hereby conferred as follows:
1. Authority of the Assistant Attorney General that is Not
Delegated
Action in the following criminal tax matters is expressly reserved for the
Assistant Attorney General of the Tax Division ("AAG"):
a. A request to present the same matter to a second grand jury or to
the same grand jury after a no true bill has been returned;
b. A request to recuse or disqualify a federal justice, judge or
magistrate;
c. A request to consent to a polo contendere or Alford plea;
d. A request to initiate or continue a federal prosecution affected by
the Department's Petite policy (dual and successive
prosecution);
e. A request for disclosure of a tax return or return information
pursuant to 26 U.S.C. 6103(h)(3)(B);
f. A request to authorize a subpoena, the interrogation, indictment, or
arrest of a member of the news media; [FN1]
FN1. See 28 C.F.R. . 50.10 for the policies regarding these matters, and the
principles to be taken into account in requesting an authorization which may
require the express approval of the Attorney General.
g. A subpoena of an attorney for information relating to the attorney's
representation of a client; and
h. A request to authorize prosecution of a person who has testified or
produced information pursuant to a compulsion order for an offense
or offenses first disclosed in, or closely related to, such
testimony or information.[FN2]
FN2. See USAM 9-23.400.
2. Delegation of Authority to the Deputy Assistant Attorney General
Criminal
The Deputy Assistant Attorney General, Criminal ("DAAG, Criminal"), is
authorized to exercise all the powers and authority of the AAG with respect to
criminal proceedings covered by this delegation, except those expressly reserved
in Section 1 above.
In addition, the DAAG, Criminal, shall forward to the AAG matters which are
deemed appropriate for action by the AAG.
3. Delegation of Authority to the Section Chiefs in Criminal Tax
Matters
A Chief of a Criminal Section is authorized to act in all matters arising
within the jurisdiction of his or her section, except those specifically
reserved for action by the AAG in Section 1 above and the following:
a. A prosecution pursuant to 26 U.S.C. Section 7212(a);
b. A prosecution pursuant to 18 U.S.C. Section 1001;
c. Issuance of a search warrant when Tax Division approval is necessary
(Tax Directive 52);
d. A matter in which the recommendations of the Chief and Assistant
Chief as to prosecution or declination conflict;
e. Prosecution of an attorney for criminal conduct committed in the
course of acting as an attorney;
f. A prosecution involving: (a) a local, state, federal, or foreign
public official or political candidate; (b) a representative of the
electronic or print news media; (c) a member of the clergy or an
official of an organization deemed to be exempt under section
501(c)(3) of the Internal Revenue Code; or (d) an official of a
labor union;
g. A request to issue a compulsion order in any case over which the Tax
Division has jurisdiction;
h. Prosecution pursuant to 18 U.S.C. Section 1956(a)(1)(A)(ii);
i. Any prosecutorial decision that requires a deviation from Tax
Division policy or procedure; and
j. A request to authorize dismissal of an indictment.
In addition, a Chief shall forward for action to the DAAG, Criminal, all
matters that involve novel substantive, evidentiary, or procedural issues, or any
other sensitive matter for which review at a higher level is appropriate.
Notwithstanding the foregoing, the DAAG, Criminal, may prescribe additional
matters, the actions of which are within the authority of a Section Chief
pursuant to this section, that the DAAG, Criminal, determines requires action by
the DAAG, Criminal.
4. Scope and Effect of this Delegation
a. This delegation includes all tax and tax-related offenses delegated
to the Tax Division pursuant to 28 C.F.R. §§0.70 and.
179a.
b. This delegation supersedes Tax Division Directives 44, 53, and 71,
and all other delegations of authority to approve or decline
criminal tax or tax-related matters or cases previously issued.
c. In the event a Section Chief is recused from acting on a particular
matter, then the DAAG, Criminal, may select another Section Chief to
act in that matter.
d. When either, or both, the AAG or the DAAG, Criminal, is recused in
a particular matter, a ranking Tax Division official will be
authorized pursuant to 28 C.F.R. §0.132 to act as either the
Acting AAG or the Acting DAAG, Criminal, in that matter.
e. When an individual has been duly designated a specified "Acting"
official, the individual shall have the same authority as the
position commands, unless that authority is specifically limited in
writing by the appropriate authorizing official.
f. The Assistant Attorney General, at any time, may withdraw any
authority delegated by this Directive
APPROVED:
Date: July 26. 1999
Loretta C. Argrett
Assistant Attorney General
Tax Division