Thursday, July 3, 2014

Sealing an Indictment Pending Arrest in Tax Cases (7/3/14)

I just saw this interesting case involving a lawyer indicted for tax obstruction, Section 7212(a).  The case is United States v. McBride, 2014 U.S. Dist. LEXIS 89455 (D. MA 2014), here.  The count of the indictment, Section 7212(a), is here.  This specific tax count does not play an important role, other than background, in the following discussion of the sealing of the indictment pending the defendant's arrest.

Briefly, the facts are that the defendant is a disbarred attorney who, the Government alleged did some bad things, much of which were not necessarily tax crimes but were other crimes and skullduggery.  The defendant had known for a long time that he was under criminal investigation and his life otherwise seems to have been falling apart.  So, the Government requested that the indictment be sealed until he was arrested, in order to avoid giving him that information that might cause him to flee.  The Magistrate Judge sealed the indictment.  The defendant was arrested, and the indictment was unsealed.  The issue in the case is whether the Government had properly justified its request to seal the indictment.  The defendant complained about the sealing, and moved to dismiss the indictment.  The Court denied the motion to dismiss.  I offer by cut and paste the entire Discussion in the Memorandum and Order (I supply the bold-faced to draw readers attention to certain portions).
McBride argues that the government violated Rule 6(e)(4) when it moved to seal the indictment without asserting that he posed a  risk of flight or providing any other justification. Further, McBride claims that his arrest constituted an "unreasonable seizure" of his person in violation of the Fourth Amendment and Fed. R. Crim. P. 9 because the warrant was not "properly supported" by a risk of flight. According to McBride, the remedy for these violations is dismissal of the indictment. The government states it requested that the indictment be sealed to secure custody of the defendant. 
Rule 6(e)(4) states: "The magistrate judge to whom an indictment is returned may direct that the indictment be kept secret until the defendant is in custody or has been released pending trial." Fed. R. Crim. P. 6(e)(4). The First Circuit has held that "Rule 6(e) rests on the premise that criminal defendants not yet in custody may elude arrest upon learning of their indictment. . . . [T]he government need not articulate its reasons for requesting that an indictment be sealed, so long as its request is based on a ground set forth in Rule 6(e)." United States v. Balsam, 203 F.3d 72, 81 (1st Cir. 2000). Risk of flight is not the only basis for sealing an indictment. For example, sealing an indictment to protect a key prosecution witness qualifies as a "legitimate prosecutorial objective". Id. 
McBride argues that there is no evidence he posed a risk of flight, pointing out that his whereabouts are well known and he has attended proceedings regularly in Bankruptcy Court. He points out that he has no passport, and has extensive family ties here. The government does not concede that there was no risk of flight, noting: "The government was aware of information about McBride that reasonably raised concerns about a potential risk of flight, including the following: McBride had been disbarred in 2005 after decades of practice; he had filed for bankruptcy in 2009; he had recently lost both of his multi-million dollar homes in Marblehead and Edgartown; he had concealed from his bankruptcy trustee his efforts to fraudulently re-finance his Edgartown property; he had engaged in fraud, fabricated documents, forged signatures, and recorded fraudulent documents at two registries of deeds; and he had recently admitted to sufficient facts on multiple state charges involving identity fraud, credit card fraud and practicing law while disbarred."
The Government essentially relies on evidence that Defendant committed a crime to support the position that he posed a risk of flight. While the weight of the evidence is certainly relevant to risk of flight, it is not necessarily dispositive, particularly here where there are such extensive community and family ties. At the hearing, the government vociferously and alternatively argued that white collar defendants should not be treated differently from defendants charged with street crime. While true, this argument does not defeat the basic principle that an indictment should not be sealed routinely without a legitimate prosecutorial objective. 
Even though the evidence does not support a risk of flight in the circumstances of this case, the error is a non-constitutional one. There is no case-law that suggests that dismissal of an indictment is the appropriate sanction for an unwarranted sealing. The Supreme Court has held that violations of at least some of the Federal Rules of Criminal Procedure, including Rule 6(e), are subject to harmless error review under Rule 52(a). Bank of Nova Scotia v. United States, 487 U.S. 250, 256, 258 (1988) (applying harmless error review where prosecutors violated Fed. R. Crim. P. 6(e) and 6(d) by failing to maintain the secrecy of grand jury proceedings and allowing improper appearances before the grand jury). While neither the Supreme Court nor the First Circuit has addressed harmless error review in the context of an improperly sealed indictment, the First Circuit has routinely applied harmless error review where defendants alleged other defects involving indictments. See, e.g., United States v. Mojica-Baez, 229 F.3d 292, 311 (1st Cir. 2000) (applying harmless error review to prosecutors' "failure to include an element in an indictment that otherwise provided the defendants with fair notice of the charges against them"); United States v. Yefsky, 994 F.2d 885, 892-93 (1st Cir. 1993) (applying harmless error review where an indictment failed to include sufficient facts to notify the defendant of the charges against him, in violation of Fed. R. Crim. P. 7(c)(1)). 
Only the Tenth Circuit has squarely addressed whether harmless error review may be applied to an allegation that an indictment was improperly sealed, holding that an improperly sealed indictment should be dismissed if the sealing resulted in non-harmless error which "substantially affect[ed] the defendant's ability to defend against the indictment." United States v. Thompson, 287 F.3d 1244, 1247, 1253-1255 (10th Cir. 2002) (dismissing an indictment based on a harmless error analysis after the government conceded it was sealed for an improper purpose, and the defendant "innocently destroyed relevant documents" during the 11-month period the indictment was under seal). 
Some courts in this district have dismissed indictments that were improperly sealed because the statute of limitations on the underlying offenses expired while the indictment was under seal. "[A]n improperly sealed indictment does not toll the statute of limitations." United States v. Upton, 339 F. Supp. 2d 190, 194 (D. Mass. 2004); United States v. Maroun, 699 F. Supp. 5, 6-7 (D. Mass. 1988) (dismissing the indictment because the sealing order was based on an implicit false representation); United States v. Cosolito, 488 F. Supp. 531, 535, 537 (D. Mass. 1980)(dismissing the indictment on the ground that the government's request to seal the indictment because publicly filing the document would compromise an ongoing undercover investigation lacked a factual basis). 
The closest analogue to the McBride's case is United States v. Gigante, 436 F. Supp. 2d 647 (S.D.N.Y. 2006), in which the court found that the defendant, charged with tax evasion, posed no risk of flight since his whereabouts were never unknown, he "was well aware . . . that he was being investigated," had been in "frequent contact" with the government through counsel, had offered to meet with the government several times, and had "asked that he be allowed to surrender if he were indicted." Id. at 657. The magistrate in Gigante granted requests to seal "multiple, successive indictments" over a period of two years, during which the statutes of limitations had expired on the offenses at issue. Id. at 660. Because the court found that the prosecutors could not have been motivated to seal the indictment due to flight risk, the court "conclude[d] that the indictments were sealed only because the Government sought to toll the statute of limitations while pursuing a related investigation," which is not "a legitimate prosecutorial reason" to seal. Id. at 657-58. The indictment in Gigante was ultimately dismissed because the statute of limitations had expired. Id. at 654-55, 660. ("If the Government is unable to justify the sealing of the indictment, the expiration of the limitations period prior to unsealing would result in dismissal of the indictment. . ."). 
Here the indictment was unsealed immediately after the defendant was arrested. There is no evidence that the sealing substantially affected defendant's rights under the applicable statute of limitations or his ability to defend himself. Accordingly, even though the sealing was improper, it was harmless error. 
The government's request for an arrest warrant, rather than a summons, also does not merit dismissal. Rule 9 states, "The court must issue a warrant — or at the government's request, a summons — for each defendant named in an indictment or named in an information if one or more affidavits accompanying the information establish probable cause to believe that an offense has been committed and that the defendant committed it." Fed. R. Crim. P. 9. The defendant's argument seems to be that by requesting an arrest warrant rather than a summons when he posed no risk of flight, the government violated both Rule 9 and the Fourth Amendment's prohibition of "unreasonable seizures" of the person. However, the law requires only that the warrant is supported by probable cause. Here, the indictment itself was sufficient to establish probable cause. See generally Kalina v. Fletcher, 522 U.S. 118, 129 (1997) (holding that the Fourth Amendment's probable cause requirement "may be satisfied by an indictment returned by a grand jury").
By way of background for sealed cases, I offer the following from a study under the auspices of the Federal Judicial Center, Sealed Cases in Federal Courts, pp. 17-18 (October 23, 2009), here:
An indictment is sometimes filed under seal and kept sealed until the defendant appears. The indictment is kept sealed so as to not tip off the defendant. In some districts, indictments are initially sealed as a matter of course. Once the defendant has appeared, the indictment can be unsealed. If the defendant cooperates with the government’s prosecution of others, who may be defendants in the same case or defendants in cases with other case numbers, then the case may remain sealed because of cooperation. Sometimes an indictment remains sealed after the defendant appears because no one thought to unseal it.
In a multi-defendant case, it is possible to seal the prosecution against one defendant while the prosecution against another defendant is not sealed. For this project, only cases sealed as to all defendants were counted as sealed cases. In a few of these, the court kept the case sealed until all defendants appeared, which presumably would require either the explicit or implicit consent of those defendants who did appear.
Sometimes the government asks the court to dismiss a sealed indictment against a defendant who has not yet appeared. Perhaps the government has decided not to prosecute the defendant after all, or the government has decided to prosecute the defendant with a different indictment or in a different jurisdiction. In a few cases, the sealed indictment was transferred. It is not clear whether such indictments should remain sealed permanently.
The following is my discussion from my Federal Tax Crimes Book immediately after the foregoing quote from the Federal Judicial Center Publication (footnotes omitted):
Sealed indictments are troubling.  Sealed indictments are not consistent with the fundamental concept that justice and the proceedings in the justice process are and should be open.  Sealed indictments impair the fundamental imperative of a statute of limitations for a crime, a concept that most would consider includes both the actual indictment and notice to the defendant.  Furthermore, depending upon the length of delay before being unsealed, sealed indictments impair the right to speedy trial, a right that is both statutory and based on fundamental notions of due process, and a defendant’s ability to defend charges that could be stale.  The general parameters for sealed indictment law and practices are (this may be more of a best practices list): 
1. In requesting the sealed indictment, the prosecutors should state the reason for sealing so that the judge considering the request, usually a Magistrate Judge, can consider the need for sealing.  (Practice in some districts may be a bit lax on this, however.) 
2. The judge should order indictments sealed only where exigent circumstances demand secrecy and only for so long as those exigent circumstances continue to exist. 
3. Sealed indictments, if brought within the applicable statute of limitations, are timely. However, if unsealed after the statute of limitations has expired or even after a substantial period of time has expired, the prosecutors should be required to explain the exigencies that required sealing during the period of sealing.  The indictment should be dismissed if the defendant can show prejudice not justified by the need for sealing the indictment. 
As noted above, the most common articulated reason for sealing is the need to avoid tipping off one or more of the defendants who might otherwise become a fugitive.  If indeed the defendant is a fugitive, of course, the statute of limitations is tolled, so the filing under seal is not needed to obtain a statute of limitations benefit. 
The potential for sealed indictments is a looming presence in one of the broadest criminal initiatives the Government has undertaken recently – U.S. taxpayers’ use of offshore financial accounts to hide taxable income.  Many of the U.S. taxpayers and their enablers (such as Swiss bankers) reside abroad or are frequently abroad.  Some of the U.S. taxpayers have feared that, if they did not join the offshore voluntary compliance programs (in seriatim iterations), the Government might obtain enough information to indict, obtain a sealed indictment and pick them up when they go through customs upon re-entering the U.S.  The enablers cannot join the offshore voluntary compliance program.  Their solution is to avoid coming to the U.S. or, otherwise, doing some type of traditional voluntary disclosure where they can serve up enough skullduggery by other persons (e.g., bank clients or other enablers) that the IRS / DOJ may give them a pass.
Finally, the foregoing covers principally the sealing of the indictment.  The second issue in McBride related to the issuance of an arrest warrant rather than a summons.  Since, in tax cases, there has usually been interaction between the local AUSA and the defendant's attorney and the defendant's attorney will know the indictment is in the offing, the defendant should negotiate for a summons for the defendant's appearance rather than an arrest.  There was a time in white collar crime cases (the larger category of which tax crimes are a subset) that arrests with public "perp walks" for reporters to photograph the handcuffed defendant were felt to be important to law enforcement.   Usually, in tax cases, where there is no risk of flight or other reason to seal, the arrest and the perp walk can be avoided, but the defendant's lawyer should have that discussion with the AUSA.

21 comments:

  1. It's speculation. If you are quite concerned about your reasonable causes, you should sit down with an adviser and hash them out. Do they hold water? But let's say you deem them to be reasonable, and still are denied entry into SDOP. That is not grounds for the IRS to audit you. Even if they do, and then look at your reasons, and level penalties and even throw the willful book at you, you then go to appeals and explain your case there. Barring that, you have the court system (district, most likely).


    This is where a lawyer is good insurance, and a cpa or a practioner at the very initial levels can help you hash out your RC arguments. Have a look at Just Me's reasonable cause argument letter. Google, "An OVDI Odyssey." It's a work of art.

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  2. ..... " is one which has been identified as being under investigation or as
    cooperating with a government investigation (see ovdp faq 7.2)..."
    I would describe this a bit clearer to avoid missunderstandings :

    Does the
    language allow the IRS to claim retroactively that the bank was
    already under investigation when pre-clearance was submitted ? A clear
    NO - Simply because a bank is known or rumored to be under
    investigation is
    not enough, there has to be an indictment, John Doe Summons, etc. to be a
    problem.

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  3. I disagree with Milan`s "rosy" outlook especially the statement that if you are denied entry into SDOP that no audit will follow- in any case be prepared with tax lawyer and CPA and Appeals to spend > $20,000 on compliance cost with no guarantees .

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  4. I've done many QDs, and enough OVDPs, and NONE of my QDs have been examined. That being said, I am not using that to advocate, en masse, a QD, nor a SDOP/SFOP. Quite the contrary. It's a specific decision to take based on one's circumstances. But, I will say that given the situation where the IRS can audit a taxpayer for willful nature subsequent to one having completed an SDOP/SFOP disclosure or a QD at any time, I would much rather take my chances with a QD (limited resources of the IRS to find a QD filer). My only advice to clients has always been, is to hash out all RC arguments up front, bad behaviour (noncompliance), good behaviour, case law matchings, so that if they were to get audited, then they can be ready withi an expanded letter to explain why they were noncomliant in their original filings. Signing a certificaiton asserting nonwillfulness when the IRS is launching a fraud examination against a taxpayer can be used against them.


    Thus, better to have all RC agreements up front, and submit that in summary form with the amendments & FBARs (and have a detailed version with evidence in case one gets audited), rather than many years later when one would be audited and has to come up with RC arguments and evidence.


    It's absurd that the IRS says that someone cannot comply with the law by filing many more years of amendments in a QD rather than the only 3 years they only want you to in an SDOP. The chances are CLEARLY less in a QD of being audited (my professional opinion)...AND even if one was audited, APPEALS is a VERY viable option prior to the court system.

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  5. I wish they thought like you: "if the foreign "account" looks and acts sort of like a U.S. pension plan, even if it is not treaty qualified...", but apparently they had a barrier. Obviously there is little knowledge inside IRS about foreign pension plans. I understand that my case (far from the $1MM) is very specific probably due to the fact that I never touched these funds. This, in my taxpayer mind should have been THE test of whether to tax/penalize them or not.


    You are saying "IRS will work with you on excluding them...". They eventually did, but without the official decision of a technical advisor it looks like an arbitrary decision. This raised another big question mark for opting out: a different examiner might bring the issue of the pension funds up again and reach a different conclusion. Then I start all from the beginning, blaming myself that I dared to hope for a better outcome.

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  6. What is the significance of August 4, 2014 then? Does one still have time to submit a pre-clearance letter if their bank is on the FAQ 7.2 list? Are you saying that someone already in the OVDP who thought they would be getting a 27.5% penalty would now all of a sudden be getting a 50% penalty?

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  7. Under the streamlined program, I'd need to file '12, '11, & '10. Does the 330 day rule include part of 2009 as is done in computing the physical presence test?


    I did not file taxes for 2010-12 but I may have spent less than 330 days outside the US in each of those calendar years, so I may not qualify for the streamline procedure as a non-resident (by only a few days!) because of the 330 day rule. Since I did not file at all for '12, '11', '10, I think I also don't qualify for the resident streamlined procedure. This was definitely not willful, but is OVDP my only option if I indeed do not qualify for streamlined?

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  8. Milan, did I understand correctly you already had a case approved for transition from OVDP to SDOP?
    - Did you fill out the Certification with all the years for tax and FBAR as those dealt with in OVDP, not only the most recent 3 years for tax?
    - Did you use the 48 page letter (meant to be RC for opt out) to certify non-willfulness for SDOP?

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  9. What if you enter the 2014 OVDP before August 4? Is pre-clearance sufficient or intake letter? Would one still get the 27.5% penalty or 50%? Please explain significance of August 4th?

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  10. Some of the features I have seen that make these accounts look like pension accounts are (i) required contributions related to employment (may be both employer contributions and employee withdrawals from salary; (ii) strict rules prohibiting withdrawals except in narrow emergencies; and (iii) financial penalty for withdrawal before some stated age (such as 55 or higher).

    Obviously if it is just a form of savings account for retirement that may be somehow tax favored in the host country without some of these features, then it is just a banking account that is (i) subject to U.S. taxation and (ii) FBAR reporting.

    Of course, those that really do function like pension accounts but are not treaty qualified will still be (i) subject to U.S. taxation and FBAR reporting, but the issue here is whether they are included in the OVDP penalty base.

    Jack Townsend

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  11. Jack and SecondGuess, how illuminating this conversation is. I have forever suspected my pension "account" not tobe FBAR reportable and not to have to be included in the penalty calculations for these reasons:

    NOT FBAR REPORTABLE because: it is made of employer contributions and deductions of my salary, did not even have an account number, not allowed to touch a cent till age 65 (and this as per the Social Security rules of the country itself which prohibits distributions to me till official age of retirement by the Social Security System of the country), no ability to decide how funds invested, and no ability to withdraw absolutely at any time till age 65 when a decision has to be made as to how to receive the funds (lump sum or over a number of years - in my case over 20 years - already retired officially as per the country's Social Security rules).

    NOT TO BE INCLUDED IN THE PENALTY CALCULATION because: There has been no income till I i have started to receive monthly payments - just turned 65, so there has been no unreported income. My attorney's position has been that employer contributions to foreign plans are taxable though.

    QUESTIONS:
    1) Are employer contributions taxable yes or not?

    2) I am taking it that appreciation on the account over the years is not the same as income, right? and so no tax would be due on appreciation, specially when the county's official rules are/were that the account is UNTOUCHABLE till government official retirement age.



    3) 31 CFR Part 1010 (Amendment to the Bank Secrecy Act Regulations--Reports of Foreign Financial Accounts - 2/24/2011), under Section F: Other Financial Accounts, specifically says that life insurance and annuity products are reportable only if they have a cash value. This new rule is applicable for tax years 2010 on. My "account" is definitely an annuity with no cash surrender value till retirement age, 65. Since this amendment defines what types of accounts are reportable the question is were these types of insurance products and annuities reportable before 2010???? I would imagine not as the purpose of the 2/24/2011 amendments appear to be related to public input for guidance.

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  12. So, is the implication that pensions accounts that are treaty qualified is not subject to FBAR reporting. It is clear they are not part of OVDP penalty but some advisors are saying, "we don't know but file them anyway"

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  13. I'm sorry. I did not mean to suggest Than treaty qualified pension accounts need not be FBAR reported. I think the treaty only covers the income tax side. The better part of wisdom would be to report, in the absence of Treasury / IRS guidance on the issue.

    In this regard, of course, as I noted in a blog yesterday here:

    http://federaltaxcrimes.blogspot.com/2014/07/rumors-on-workings-of-streamlined.html

    the requirement, if any, to report on the FBAR might require that the account be included in the penalty base if it is FBAR reportable even if treaty qualified and therefore tax compliant. I can't believe that the IRS would impose that result, but check that discussion out.

    Jack Townsend

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  14. RON,

    1) There are some unresolved issues swirling around foreign pension-type accounts. I think that the IRS, if forced to rule, would say that non-treaty qualified pension accounts do not get deferral of income (i.e., internal build-up and employer contributions may be currently taxable rather than deferred until retirement, if there is some way to measure current income) and that such accounts, depending upon characteristics looking like a financial account, may be FBAR reportable. So the answer to question 1) on taxability, the answer is maybe.

    2) Appreciation is not the same as income. Realized transactions in the pension account (say stock sales) that can be attributed to the U.S. person and measure presumably could be taxed if it is not U.S. treaty qualified. Whether the IRS will do that in any case is unknown. The cases in which the nontreaty pension accounts were ignored from the offshore penalty base did not require inclusion of any income.

    3) That may be right, but if there is any uncertainty about the pension plan, it might be the better part of wisdom to report it on the FBAR. There is no cost to reporting it on the FBAR, even if the income is not currently reportable.

    Jack Townsend

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  15. If I may add a note to 3) The statement "There is no cost to reporting it on the FBAR, even if the income is not currently reportable" applies only going forward or for past, missed years within OVDI/P. In the Steamlined it will cost you 5% (see Jack's other post "Rumors on the Workings of Streamlined Programs").

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  16. RE: 2) appreciation not = income. What if you have mutual funds in the pension plan, even if these mutual funds are specifically for pension plans participants, wouldn't you have to with the PFIC rule to MTM or other methods?

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  17. Anon5percent, just read your story. Yes! Examiner was right! It's a perfect tax dissertation. congratulations!!! It;s the first time I read/hear one of us having asked TAS for help too. I just did it myself and wondered if it will get me anywhere. Would very much appreciate your guidance on TAS. Quickly, I am a dual citizen US resident for a long time caught like most of us in this sudden madness and trying to be compliant right away. I am in the OVDP, got 906, not signed yet, not sure I want to go into the Streamlined program given the chameleon nature of the concept of willfulness-nonwillfulness. My penalty is a staggering 18 times my tax deficiency (9K deficiency, 175 K penalty). Most of it is based on the value of a condo where I paid tax on rental income in my country based on my misreading of a tax treaty.
    QUESTIONS ARE: 1) TAS has assigned me a case number and asked that the IRS examiner send the a OAR (Operational Assistance Request?). What does this mean to you? 2) the lady assigned to me has told me that a "technical advisor" notes that I should join the new streamlined program (5% penalty) but while I believe in my nonwilfullness I am scared by what I read in the blogs as to the shady nature of the way the IRS defines/uses "willful vs nonwilfull". The question is if TAS finally proposes that I go into the streamlined structure but I finally did not want to, will TAS accept my request for another solution (considering the $175K outrageous size of my penalty relative my "$9K tax deficiency over 8 years?) I can't believe the OVDP was meant to work this way!! I am asked to pay a penalty proportionally many many times higher than the tax evader with Swiss bank accounts! 3) you mentioned writing to Nina Olson - where can one find her email address? I can;t find it. 4) You mention her attorney advisors Eric Lopresti and Rosty Schiller, would these be people to write to if TAS does not seem to get me the necessary help because they do not understand the OVDP as well as we do by now? It is understandable that they would not. THANKS A MILLION!

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  18. Ron, how did you manage to get a case number assigned with TAS? My many phone calls didn't get anywhere. I needed help when I was stuck with the pension funds issue. Managed to get an answer at the local TAS phone number, but they gave me a 800 number to call IRS for questions rather than open a case.

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  19. RON - First of all, calm down. It is my view that the new SFCPs are a good thing. While many would like the IRS to not have used the criteria of willfulness, that is how they think. They think in the terms of the IRM and that is what you need to do, too. What you need to do is take a position that you are non-willful and present your arguments that back up that position. I will go into more detail in my answers to your questions.

    1) It is good you have a case number. An OAR is request so that TAS can get information from the IRS revenue agent who is handling your case. You can read about it on this link: http://www.irs.gov/irm/part13/irm_13-001-019.html

    2) If the TAS technical advisor is suggesting you go for the 5%, that is a good indication that based on the facts you presented that someone in the IRS sees you as non-willful. Why don't you ask your TAS case advocate why the technical advisor suggests you go for 5%? Why does the technical advisor see you as non-willful? That should help with the construction of your arguments for your case. My first review by the TAS RATA (Revenue Agent Technical Advisor) led him to state that I appeared non-willful based on FS-2011-13. While it was not a guarantee as to how other technical advisors in the IRS would decide, as the technical advisors in the IRS guide the Revenue Agents in making their determinations, it was important that one of them (no matter where he sat in the IRS) saw me as non-willful. That helped give me some confidence that I had a case for opt out. It also helped me to figure out some of the arguments that could apply to my case. Remember, I did not fit the criteria exactly, but I argued substantial similarity.

    As for not going into the SDOP 5% structure, what other options do you have, other than opt out? If you are afraid the IRS will see you as willful, then you shouldn't opt out as the results could be even worse.

    From my discussions with the TAS and my Revenue Agent, my foreign tax compliance was looked at positively. You state that you have been tax compliant in your former country and that your mistake came from a misinterpretation of the Tax Treaty. So tell the IRS that and send them corroborating evidence. I got tax statements from my country's Tax Authority and presented that as exhibits.

    3) Nina Olson's address is nina.e.olson@irs.gov Please note that when I wrote her, I wrote about a systemic issue (IRS not allowing email contact) that was making it impossible to progress with the IRS. I did not write her about the details of my case.

    4) My suggestion would be to follow protocol and let your case advocate contact Eric or Rosty if you feel that the case advocate needs more guidance. Technically, Eric and Rosty are not supposed to correspond directly with taxpayers. The contact I had with them was always together with my case advocate. Your case advocate is your main contact and should be involved in all communications. It worked well that way for me.

    Remember, I am not a lawyer. I am just a person who can compare what you present to what I did, that's it. I hope this helps.

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  20. Secondguess, what you do need to do is not just call. Send them a form 911 (Request for Taxpayer Advocate Service Assistance. You can download it from the IRS site or the TAS site. They have to respond to you when you send it. Attach your arguments to the form. Let me know if you need any more info/comments/etc.

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  21. Where do I find JustMe & Moby's template please?

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