Saturday, June 16, 2012

Good Advice on Talking to Investigators - Fifth Amendment (6/16/12)

This applies equally to proffer sessions with U.S. attorneys who claim that your client is only a subject of the investigation.  (I assume that no attorney will venture in if the U.S. attorneys say that the client is a target.)


  1. For foreign account cases, can the defendent be considered "non cooperating" if he doesn't talk to the investigators in the first place?
    In foreign accounts cases, the defendent is pretty much always guilty. He did not check the foreign account box, did not report the interest from the foreign account, and did not file FBARs. The crimes have been commited, the CI knows it, the defedent knows it. There is no denial. In that context, why would it hurt to cooperate with them without an attorney (in minnow cases)? Could what the defendent say turn the case into willful non compliance, when it is non willful in the first place?
    Is an attorney always recommended for audits of foreign account minnow cases?

  2. Great Video Jack.  Thanks for posting that. I learned a lot. 

  3.  There seems to be a different set of rules within the OVDI and outside the OVDI.  Within the OVDI, you use 27.5% of your foreign assets to buy immunity.  Outside the OVDI, it would appear that the good law professor in the video is recommending that you say nothing, nothing, nothing--to the investigator.  He doesn't allow for a single exception.

  4.  You seem to not understand what 'guilty' means. if its not willful, then by definition its not guilty. At worst, the person is negligent.  There is no crime committed.

    Since you seem so confused about the very concept of guilty, then I think you most definitely do need an attorney if you are audited. And if anyone is contacted by an IRS CI, I think he or she should clam up, and get an attorney.

    I have no specific thoughts on what someone might do if contacted by a Special Agent in the context of a VD (especially in the OVD programs) or on opt out. I presume the agent is almost certainly more interested in enablers and the like, so I presume the taxpayer should co-operate   to maintain their status in the program. For minnows, I doubt it is an issue since there are no enablers. Jack, maybe you have some thoughts on what you would advise clients to do normally, or does it depend on the client's particular facts and circumstances ? Assume the disclosure is full and complete, and the returns are fair (not perfect, but fair).

  5. I was initially dissuaded from listening to the video because it is 48 minutes long, but ended up listening anyway.
    I am glad I did.  He points to why even truthful statements by an innocent party can result in conviction.


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