Saturday, September 6, 2014

Request to Readers for Help on Copyright Violations and Plagiarism (9/6/14)

I write today to note that I am aware that certain other tax professionals have published works (such as blogs) that have copied or paraphrased, often with minimal changes, significant portions of my blog entries without quotations or attribution of the source.  Such or paraphrasing copying can be either or both copyright violations or plagiarism.  I know that some readers of this blog read other materials available on the web and thus might have some opportunity to identify such behavior and advise me of it either by comment on this blog or by email to jack@tjtaxlaw.com.

I think it helpful to give some short definition of the key terms -- copyright violations and plagiarism.

Copyright Violations

Copyright violations are violations of the U.S. law governing copyrights.  The Wikipedia Entry, here, titled "Copyright law of the United States of America," offers a good summary of the U.S. law, with appropriate links for further study.

Copyright law law is complex,  but in part relevant to this request for help, the key to copyright law  is that ideas are not protected but expressions of ideas are protected.  "Others are free to express the same idea as the author did, or use the same facts, as long as they do not copy the author's original way of expressing the ideas or facts."

As Judge Posner explains in his book, The Little Book of Plagiarism, 12-13 (Knopf Doubleday Kindle Edition 2009):
Copyright law does not forbid the copying of ideas (broadly defined to include many features of an expressive work besides its precise words or other expressive details, such as genre, basic narrative structure, and theme or message), or of facts. Only the form in which the ideas or the facts are expressed is protected.
Further from the Wikipedia link:
A paper describing a political theory, for example, is copyrightable; it may not be reproduced without the author's permission. But the theory itself (which is an idea rather than a specific expression) is not copyrightable. Another author is free to describe the same theory in their own words without infringing on the original author's copyright. In fact, the second author does not even need to credit the original author (although failing to credit the source of an idea may be plagiarism, an ethical transgression).
One way subsequent authors attempt to avoid copyright violations is to paraphrase, so that, they hope, they are merely expressing the idea (not copyrightable) and not the earlier author’s expression of the idea (copyrightable).  But, as Wikipedia notes, here, in its entry on Paraphrasing of copyrighted material:
Paraphrasing of copyrighted material may reduce the probability that a court will find that copyright has been infringed; however, there have been many cases where a paraphrase that uses quite different words and sentence structure has been found to infringe on a prior work's copyright. 
The acceptable degree of difference between a prior work and a paraphrase depends on a variety of factors and ultimately depends on the judgement of the court in each individual case. 
 * * * * 
A paraphrase is a restatement of the meaning of a text or passage using other words. Equivalent concepts apply to images or music. In most countries, copyright applies to the original expression in a work rather than to the meanings or ideas being expressed. A loose paraphrase of a portion of a work may therefore be published without violating copyright. If the paraphrase is so different that the expression in the derivative work has no similarity to that of the prior work, there is no infringement. 
* * * * 
Wainwright Securities was engaged in preparing in-depth analyses of public companies, and selling them to major investors. The Wall Street Transcript Corporation, publisher of the Transcript magazine, began to publish abstracts of the Wainwright reports. In Wainwright Securities v. Wall Street Transcript Corp (1977) the U.S. Court of Appeals for the Second Circuit noted that "news events" cannot be copyrighted, but found that "the Transcript appropriated almost verbatim the most creative and original aspects of the reports, the financial analyses and predictions." The court said, "What is protected is the manner of expression, the author's analysis or interpretation of events, the way he structures his material and marshals facts, his choice of words and the emphasis he gives to particular developments." An example of very close paraphrasing in this case was: 
Original: "And second, he says that likely to aid comparisons this year was the surprisingly limited extent to which Fiber Divisions losses shrank last year." 
Paraphrase: "The second development likely to aid comparisons this year was the surprisingly limited extent to which the Fiber Division's losses shrank last year."
To bring this home to a tax crimes setting, the following is an original copyrighted expression from my book, Federal Tax Crimes (Townsend, John A., Federal Tax Crimes, 2013, p. 763 (February 5, 2013). SSRN: http://ssrn.com/abstract=2212771, which had been carried from an earlier draft into the Tax Crimes publication coauthored with Larry Campagna, Steve Johnson and Scott Schumcher (LEXIS-NEXIS 2008), here.
Recommending Criminal Prosecution. 
When CI concludes the investigation, it has two choices.  First, and the best for the taxpayer, CI can decline criminal prosecution and refer the case back to Examination.   Second, CI can forward the case to DOJ Tax with a recommendation for criminal prosecution.  I focus on this second alternative. 
CI recommends criminal prosecution when the case is otherwise within its priorities and “the evidence is sufficient to indicate guilt beyond a reasonable doubt; and a reasonable probability of conviction.”  [FN: IRM 31.4.2.3(1) (7/2/90)] Typically, of course, CI will not have devoted investigative resources to a matter not within the priorities.  But, if they have done so and have a substantial investment in the matter, CI may be inclined to recommend prosecution of a case only marginally within its priorities.  It then becomes the lawyer’s job to convince CI that it should not prosecute despite this investment of time.  Failing convincing CI of that, the advocate may have a better opportunity of focusing this type of argument at the later decision points (DOJ Tax and, conceivably, the United States Attorney) who will have neither a time nor an emotional commitment to the case and can take a broader view of the Government’s priorities,
Consider this version by another author which, given the subject of the article, I cite at the end of this blog:
Recommending Criminal Prosecution 
When CI concludes the investigation, it has two choices: First, and better for the taxpayer, CI could decline criminal prosecution and refer the case back to Examination.  Second, CI could forward the case to DOJ with a recommendation for criminal prosecution.  Let’s focus on the second alternative. 
CI recommends criminal prosecution when the case is within its priorities and “the evidence is sufficient to indicate guilt beyond a reasonable doubt; and a reasonable probability of conviction.”  IRM 31.31.1(1).  Typically, of course, CI will not have devoted investigative resources to a matter not within its priorities.  But to the extent that CI has done so, it may nevertheless be inclined to recommend prosecution of a case that is only marginally within its priorities. 
It then becomes the attorney’s job to convince CI that it should not prosecute despite this investment of time.  If unsuccessful, all hope is not lost.  Indeed, the attorney may have better luck convincing DOJ Tax (and, conceivably, the Assistant United States Attorney), who will neither have the same time or emotional commitment to the case as CI and can take a broader view of the government’s priorities.
[JAT Note: This author gives no credit to the source from which the author drew, even with the difference in the cited source in the IRM (I put the IRM provision from my Federal Tax Crimes publication above; the IRM provision in the Tax Crimes publication is the same as cited in the above quote, so it appears that the direct quote is from the Tax Crimes publication).]

One can make an argument that the second quote is a copyright violation of the first (which as noted, appears in two copyrighted publications, although the direct source he apparently used was the Tax Crimes publication)..

Plagiarism

Plagiarism is a different concept than copyright violations, although at core they have to do with the improper use of other person's intellectual work in a setting which ascribes the work to the copying or plagiarizing author.  See Wikipedia entry here.
Plagiarism is the "wrongful appropriation" and "stealing and publication" of another author's "language, thoughts, ideas, or expressions" and the representation of them as one's own original work. 
* * * * 
Plagiarism is considered academic dishonesty and a breach of journalistic ethics. It is subject to sanctions like penalties, suspension, and even expulsion. 
Plagiarism is not a crime per se but in academia and industry, it is a serious ethical offense, and cases of plagiarism can constitute copyright infringement.
The last concept is important.  Plagiarism may exist independently of a violation of copyright law.  As Judge Posner says in his book, The Little Book of Plagiarism 12 (Knopf Doubleday Kindle Edition 2009),
There is considerable overlap between plagiarism and copyright infringement, but not all plagiarism is copyright infringement and not all copyright infringement is plagiarism.  For that reason, the example above, in addition to being a probably copyright violation, almost certainly is plagiarism as well.
The same issue of paraphrasing is present as with copyright violations.  For examples of good and bad paraphrasing in a plagiarism context, see Academic Integrity for MIT: A Handbook for Students, here.

And, of course the proper form even when paraphrasing is to cite the source(s).  See Understanding Plagiarism and Paraphrasing: A University of Virginia Honor Committee Supplement, here.

So, probably the same analysis would apply in the determination of whether the second quote above plagiarizes the first quote.

Finally, I also found this short and enlightening article on ethical issues in plagiarizing in articles:  Martin A. Cole, I Wrote this Article Myself, reprinted by the Bench & Bar of Minnesota (July 1993, here.  Key excerpts:
Recently, the Director's Office issued an admonition to an attorney who, in preparing materials for an educational seminar, plagiarized substantial portions of the work of an attorney from another firm without attribution. Fifteen months earlier, an attorney was issued an admonition by a panel of the Lawyers Professional Responsibility Board on almost identical facts. While two non-public lawyer discipline cases hardly constitute a major trend, it may be an opportune moment to review these matters and a lawyer's professional responsibility obligation for personal honesty. 
* * * * 
There is always a balancing in fashioning the correct sanction in any lawyer discipline case. The interests of the public, other members of the bar, and the courts must be weighed, as must the "human"  elements unique to each individual respondent. In Minnesota, this balancing thus far has resulted in private discipline in two plagiarism cases, but both respondents were remorseful and had otherwise spotless reputations. The Lawyers Board panel which issued the first admonition stated clearly that it was seriously concerned about the offense of plagiarism. The Director's Office believes that plagiarism adversely reflects on an attorney's basic honesty, and should always result in discipline. Public discipline still may be appropriate on some future set of facts, such as where the benefit available to the attorney is greater.
The second quote which I above asked readers to compare to the first quote from my book is: Michael DeBlis III, Anatomy of a Criminal Tax Case: From Investigation to Prosecution (6/12/14), here (as viewed 6/18/14 and 9/6/14).

Addendum 9/7/14 2:55 pm:

I just viewed the above blog entry on 9/7/14 and find that, apparently in response to my original posting yesterday, Mr. DeBlis has revised the entry to indicate quotes and attribution, although his attribution is:  Tax Crimes, Townsend, Jack, Lexis Nexis, 2008.  That is not the correct attribution since that publication's authors are John Townsend, Adjunct Professor, University of Houston Law Center Larry Campagna, Adjunct Professor, University of Houston Law Center Steve Johnson, E.L. Wiegand Professor of Law, University of Nevada, Las Vegas, William S. Boyd School of Law Scott Schumacher, Assistant Professor of Law, Director, Federal Tax Clinic & Acting Director, Clinical Law Program, University of Washington School of Law.  As noted above, that particular portion of the Tax Crimes books was drawn from an earlier version of my Federal Tax Crimes book (which has remained the same in the later versions of the Federal Tax Crimes book).

88 comments:

  1. Isn't it common knowledge that due to prosecutorial selection, the vast majority of defendants truly did commit the crimes and ought to be punished? The calculation has to go like this (the reader is invited to supply more accurate numbers than the ones I'm guessing). 1000 people intentionally evade taxes in such a way that if we knew the truth we think they should be criminally punished. Of these, 100 come to the notice of the authorities, and they decide the evidence is strong enough to prosecute 10 of those 100, and also 2 who in reality are innocent. A jury using a 70% number as "beyond a reasonable doubt" convicts 8 of the 10, and also 1 of the 2 (note that the 70% number has no formulaic link to the 8 and 1 numbers). Thus, of 1000 guilty men, 992 go free, and one innocent man is punished. We're a lot more lenient than Blackstone.

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  2. Eric,


    Thanks for your analysis. One could quibble about the numbers in each category you assign, but (i) it would be quibbling and (ii) your big point is that, at least in the federal tax crimes universe, the number of innocent that are convicted is very low -- far less than would be indicated by the notional percentages for conviction beyond a reasonable doubt. In tax crimes, at least, we are a lot more lenient than Blackstone.


    And, that is why DOJ Tax and IRS publicize indictments, pleas, convictions and sentences -- to encourage taxpayers to comply -- by making compliance more palatable if others get punished (even if the real ratio is low) and by sending a deterrence message to other taxpayers.


    Thanks for your analysis.


    Jack Townsend

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  3. You're welcome. I'd guess that the same thing is true for state cases too. The highest innocents-convicted rates are probably in crimes such as rape and murder where there's pressure (rightly, I think) to prosecute *someone* even if the prosecutor isn't sure of his case. For lesser crimes, the public won't object as much if he uses his discretion not to prosecute, nor will the police, since they'll figure the same person will be arrested again anyway, when the evidence is stronger.

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  4. Jack, one way to find infringement is to type unusual phrases (in quotations) from your blog into the Google search box. I believe there is also software that will search out copyright violation for you (its often used by professors to identify student papers that are lifted from the web.) Since you teach, one of yur fellow professors might know about this.
    The big problem is getitng the material taken down when its on a foreign server,

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  5. Jack are you or any of your readers aware of anyone who has opted out of the OVDP, being prosecuted either civil or criminal by the IRS ? From what I have heard the IRS has not been seeking any civil or criminal actions against opt out because these people came forward voluntary
    even if they had done some shady things, they came clean on their own accord and made good on their back taxes. Therefore a court is not likely to be too severe with them, and the IRS will settle the matter out of court.

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  6. Jack in this one case of yours that the IRS asserted max willful penalties for your opt out client , did they go for multiple years or just one year ? Also did the IRS win this case or is it still pending resolution?

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  7. Ron, I disagree with the other commenters, I would - especially in your case - leave out the reference to your CPA but I agree that in a more normal relationship definitely interview the preparer before the agent does with regards to the possible question. In addition if you play the tax bermuda triangle the wrong or inefficient way it will get very costly very quickly as one person here had to learn already the hard way.

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  8. Jack we do know what the IRS can do per the statues but the more important question remains why were max. willful penalties asserted ?!
    I have had so far not one case where this did happen.

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  9. Jack could you give your best guess or estimate of a) how many streamlined submissions are currently in front of the examiners and
    b) how is this organized internally :
    1. who does the opt out audits
    2. who does the streamlined adits
    3. who does the QD audits

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  10. As to 2. I think only if the IRS decides to "audit" will the IRS review the certification. Obviously under the IRM process you refer to, it has certain objective criteria (certain forms numbering 5 or more) that will result in some level of review. I am sure that there will be different levels of review based on the result of the first level of review.

    My only point was that, if there is an audit of anything, it is likely to focus on the nonwillfulness certification. This is because, at least in most cases, the amended returns will appear regular and, statistically should be good amended returns (unless the taxpayer was incredibly dumb), so the real focus is on nonwillfulness. This is what has happened in my opt outs -- the income tax returns are not audited; the FBAR penalties are the focus of the audit. I expect that same phenomenon will play out in the streamlined process -- the income tax returns in most cases will not be audited (or will be audited lightly unless some indication of material problems arise) and the focus will be on the nonwillful certificatoin that, if wrong, could lead to FBAR penalties.

    Jack Townsend

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  11. Jack, when you say "if the Appeal is not successful in getting the IRS to back off, we will be in the local district court within a month of the decision in a refund suit with a jury demand" I understand that for a client who lives in the US but how would this work if your client would live in europe ?

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  12. notamused,

    I have taken the liberty of putting in [family member] rather than the more specific term. Otherwise, the summary is fair, but there is a lot of detail behind it.

    I think that the Government is done with Mr. Zwerner unless he did something in later years (years after those in the case) that comes to light after the IRS processed that case. I think Mr. Zwerner was being well-counseled during that period and doubt that there was be any subsequent year problems.

    Jack Townsend

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  13. I think you misunderstood my reference to Mr. Zwerner....I meant to say that if in his case 2 years of willful FBAR penalties is where the Service settled in the end than this should be your and 99% of all other cases worst case scenario. I assumed in your case the Service is not asking for more ?? Which would be ridiculous
    by any standard and a case for suing for legal fees as well.

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  14. Mopsick is a petty revolving door influence peddler. If he had been
    higher up, like that criminal Lehner or Kosiken, then he could have hit
    the jack-pot and peddled his influence on "retainer" to companies like
    Deloitte or KPMG.

    So Mopsick is forced to live off of his CSRS
    pension from 30 years as a government parasite and the $600-$1000 per
    hour he can scalp from honest people who don't make a living feeding off
    of the empire's carcass.

    The joke is that he, and so many tax
    compliance experts, lives in a fantasy world where they think they are
    actually providing a "valuable service" in an "honorable profession".
    The truth is that there is zero justice to be found in the IRS, witness
    Email-gate and the continual obstruction and evasion of justice be the
    top echelons of the IRS. Or how about the automatic presumption of
    guilt by the IRS and their ability to seize assets without any concrete
    evidence of wrongdoing.

    Another sick joke we are forced to accept
    is that these "tax experts" actually can somehow assist us tax-slaves
    in getting justice. Mopsick in fact is merely peddling his connections
    inside of the IRS. We know from Jack's blog here that the outcome of an
    OVDI or SDOP has far more to do with the luck of the draw in which
    agent covers your case than in the skills of your attorney. This is the
    reason why Mopsick trolls at places like isaakbrocksociety.ca, to make
    potential clients believe that he has powerful connections within the
    IRS and that these connections can help tax-slaves achieve tax-justice.


    This also explains why Mopsick made these veiled threats to
    Peter Dunn (and myself): it broadcasts the message that he has powerful
    inside connections in the agency.

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  15. I just got a comment in this trail of emails that seemed to focus on personalities rather than issues I am trying to present in my blog. I therefore decided not to approve the comment and perhaps should have done the same for some earlier comments.


    I encourage readers to focus on issues and not on personalities.


    Thank you.

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  16. ANON, thanks for your input. I will take it into account. Please tell me what the "TAX BERMUNDA TRNAGLE " means? I know I saw it before in a post but again it escaped me what was meant. thanks! :)

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  17. Also, ANON, who was the person here that learned how expense and how quickly so it got (playing the Bermuda triangle)? Maybe they can tell me about it.

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  18. Thanks Jack. In my case, the preparer did give me an organizer each year and it did have the question as to whether I had foreign accounts/income. I responded NO. so he did do his job, right? He would not be worried that in front of the IRS he did not do what he should have done? Reason I said NO is terribly simple. I thought I had ONE ACCOUNT and always below 10K so I did not see the need to report it to the accountant. (during OVDP I found several old signature authority accounts after 2 trips to the county of origin and talking to family members). Same for income, I had a rental property and based on my reading of the tax treaty I (although erroneously I have learned now)interpreted I had to pay tax in the other county which I have done at a much higher rate that it would have been in the US. I had never heard about foreign tax credits till the OVDP accountant explained. Your take not he accountant etc? thanks.

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  19. Tax Bermuda Triangle : relationship and interactions between IRS - CPA - Tax Lawyer

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  20. a new court case is in the works on behalf of those "Accidental
    Americans" who now face the horrendous cost of getting rid of a
    citizenship they didn't know they had and don't want. The right
    to expatriate enshrined in international law is meaningless when a
    country puts a price tag on it that is outside the reach of all but the
    most affluent.

    Here is their press release :

    Alliance for the Defence of Canadian
    Sovereignty Retains Washington D.C Attorney to Change U.S. Expatriation
    Policies Applied to Canadian Citizens Resident in Canada

    Today, the Alliance for the Defence of Canadian Sovereignty (ADCS-ADSC)
    retained Jim Butera, a Washington D.C. attorney with Jones Walker LLP.
    Mr. Butera will explore legal options to reverse practices of the United
    States government preventing Canadian citizens who are “Accidental
    Americans” from freeing themselves of U.S. citizenship and obligations.

    Accidental Americans include those born in the U.S. but who left the
    United States at a young age to live permanently in another country.
    Although they have no meaningful ties to the U.S., they are claimed as
    “U.S. citizens” and subject to lifetime taxation on their non-U.S.
    income. Accidental Americans not compliant with the Internal Revenue
    Service (IRS) are considered by the U.S. to be “tax cheats” not paying
    their “fair share”.

    Many Americans ask: “Why don’t these people who don’t want to be U.S.
    citizens just renounce their citizenship?” The answer is that the U.S
    requires a variety of fees (expatriation penalties) to be released from
    U.S. citizenship and its obligations. Many cannot afford these different
    citizenship penalties which include the requirement to pay
    the professional costs of five years IRS compliance and the possibility
    of an onerous exit tax (designed to compensate the U.S. for losing the
    right to tax “Accidental Americans” in perpetuity). In addition, a new
    penalty is the increase in renunciation fee from U.S.$450 to U.S.$2,350,
    making it difficult for many Canadians to afford the cost
    of renunciation.

    Kathleen is a Québécoise born in the U.S. to a French-Canadian mother
    and American father who left the U.S. at the age of three. She says ”I
    know I can’t possibly plan for my retirement in Quebec while following
    these U.S. tax laws” and hopes to be able to pay the costs to renounce
    her citizenship. A middle class mother of three, she had to pay a
    tax expert to calculate the cost to renounce obligations to the IRS.
    “The cost will be at least one full year of income that I could have
    used for my retirement, and may be a lot more” says Kathleen.

    “We want to change U.S. policies that could force into bankruptcy
    innocent Canadians, like Kathleen, who want to free themselves of U.S.
    citizenship that was imposed without consent. Submissions to Congress
    have had no effect. That’s why we are exploring legal options” says
    Stephen Kish, ADCS-ADSC Chair.

    Contact: Dr. Stephen Kish, Chair, Alliance for the Defence of Canadian Sovereignty

    (www.adcs-adsc.ca) Information@adcs-adsc.ca

    ReplyDelete
  21. Robert Wood: “Canadians Attack U.S. Expat Rules, Decrying ‘Accidental Americans’ “
    http://www.forbes.com/sites/robertwood/2014/09/09/canadians-attack-u-s-expat-rules-decrying-accidental-americans/

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  22. If you file a qualified amended return, can the IRS assess a fraud charge on the original return?

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  23. The answer is yes, although some clarification is needed.

    The qualified amended return (QAR) only protects against the accuracy related penalty (generally a 20% penalty). The QAR does not protect against the civil fraud penalty (75% of the tax attributable to fraud). Having said that, the IRS rarely, if ever, pursues the civil fraud penalty after a taxpayer files a QAR, but the caveat is that the IRS can pursue and assert the civil fraud penalty and prevail if the circumstances indicate civil fraud by clear and convincing evidence.

    Now, you used the word charge in your question. I think you were asking about the civil risks, but the word charge is something that is normally used in a criminal setting. So, I will answer in that setting as well. The QAR would probably be considered a voluntary disclosure. Provided the QAR is true and complete and you cooperate in any subsequent investigation, the IRS would probably treat it as a voluntary disclosure and not refer for criminal prosecution. I use the fuzz word probably because the IRS proclaims from time to time that a quiet disclosure (QD), of which a QAR is simply a type of QD, does not qualify as a voluntary disclosure. Most practitioners think it is or will be treated as a voluntary disclosure provided the conditions I noted above are met. I have done many QDs over the years and have never even had an investigation, much less a prosecution. And that is the experience of all the practitioners I know. So, from a practical perspective, even if the IRS could pursue a criminal charge, it is highly unlikely to do so unless the taxpayer misbehaves in filing the QD or in any subsequent investigation.

    Jack Townsend

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  24. I am not sure if you are asking a question or, if so, what the question is.

    Jack Townsend

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  25. Thank you Jack. I really appreciate your experience on these matters, as it gives me the confidence to move forward. You are the best!!!!

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  26. Jack, below I have copied and pasted a post by you in response to Balckseal who had responded to me about my concerns with my very bad relationship with my tax preparer who I fired, and my concern that if he is called by the IRS he might lie to et back at me (and of course I do not know if he would). In my post to you, which was asking your opinion on how well I might fare if IRS called this CPA given my facts, which I am copying and pasting too below again:

    YOUR RESPONSE:

    In every opt out case I have had, the IRS agent did contact the preparer. Most of the times, they wanted a copy of the questionnaire if the taxpayer filled one out contemporaneously and a copy of any notes the preparer had that might be relevant (such as initial interview notes, etc., that might show information about foreign accounts). In addition, the preparer will be asked whether he or she asked the client about foreign accounts. The preparer should have asked the question at some point, so the preparer may have some qualms about admitting that he or she failed to do something he or she should have. So, definitely interview the preparer before the agent does and that is best done by the attorney.

    Jack Townsend

    MY FACTS AS POSTED YESTERDAY:

    Thanks Jack. In my case, the preparer did give me an organizer each year and it did have the question as to whether I had foreign accounts/income. I responded NO. so he did do his job, right? He would not be worried that in front of the IRS he did not do what he should have done? Reason I said NO is terribly simple. I thought I had ONE ACCOUNT and always below 10K so I did not see the need to report it to the accountant. (during OVDP I found several old signature authority accounts after 2 trips to the county of origin and talking to family members). Same for income, I had a rental property and based on my reading of the tax treaty I (although erroneously I have learned now)interpreted I had to pay tax in the other county which I have done at a much higher rate that it would have been in the US. I had never heard about foreign tax credits till the OVDP accountant explained. Your take on the accountant? on my facts? thanks.



    Edit



    Reply

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  27. Jack, when you say "if the Appeal is not successful in getting the IRS
    to back off, we will be in the local district court within a month of
    the decision in a refund suit with a jury demand" I understand that for
    a client who lives in the US but how would this work if your client
    would live in europe ?

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  28. Sorry Jack, I guess I still have not clarified what my question specifically is. It is this: I believe my facts are very benign. What is YOUR opinion? I have no recollection whatsoever of having had the CPA ever discuss foreign accounts/income with me (and he probably never asked as I said NO in his organizer question about foreign accounts/income). Question then is: How do you think I might fare (again based on my facts and reason to answer NO as I described in my post just sent to you)if, given how angry he is with me for firing him, he lied and said he did discuss it with me?

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  29. notamused you make a good point with regards to IRS Title 31 greed and I agree with regards to the expected worst case scenarios in litigations . But I still hope for a slip up and a good case with regards the excessive fines clause

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  30. RON,

    I can't answer that question because I don't have enough facts. Before I would answer that question I would need a long discussion in order to develop the nuance.

    Sorry,

    Jack Townsend

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  31. Jack, I can understand. Each story is a whole world… No problem and thanks.

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  32. GlobalCapitalism,

    I have not researched the law, but you might check out Robert Horwitz, Litigating the FBAR Penalty in District Court and the Court of Federal Claims, link provided below, where he concludes: Briefly, as I understand his conclusions, jurisdiction in the FBAR refund suit is in a district court "in either district court (if the amount the plaintiff seeks to recover is $10,000 or less) or the Court of Federal Claims." (see p. 16 of the article.) Now, the question you raise is which district court as to a plaintiff who is a nonresident. I don't know the question, but I seem to recall in analogous contexts that, if the person has a district court remedy, it will be to the district court for the District of Columbia. In my view as between the D.C. district court and the Court of Federal Claims, the Court of Federal Claims would be the place to litigate becuase it is a much less formal court with a lot friendlier proceedings that make handling a case long-distance from the judge / court more efficient. I have the advantage of having a local resident client and therefore the district court is better, particularly since I can get a local jury.

    But, whichever court you go to, you can have the case filed and in process in short order. Keep in mind, however, that the litigation process, once started, is usually very slow.

    http://taylorlaw.com/wp-content/uploads/2014/03/Article-Litigating-the-FBAR-March2014.pdf

    Jack Townsend

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  33. yes thank you but I have read already Robert Horwitz, Litigating the FBAR Penalty in District Court and the Court of Federal Claims.... Tucker Act, 28 USC1491
    My question was more geared towards what happens to a plaintiff who is a non resident. Do I understand you correctly when you say to choose the Court of Federal Claims since there is no right to a jury trial which makes handling of a long distance trial easier.

    ReplyDelete
  34. The Court of Federal Claims is a more user friendly court for a lot of reasons. One would choose a local district court over the CFC only if he or she wanted a jury trial or felt that the local judges may be more favorable. In our case, we would want a jury because, in the final analysis, our case turns on credibility and I have an extremely credible client.

    But, to get back to the Court of Federal Claims, the Court is extremely accommodating for long distance parties and witnesses and to pro se plaintiffs. (Pro se, as you know but other readers might not, is lawyer jargon for a party representing himself in the litigation.)

    I don't know ultimately how accommodating the CFC might be for a foreign resident but I can see the CFC being the most user friendly court to be in.

    Jack Townsend

    ReplyDelete
  35. Jack, looking forward to read about your FBAR refund suit - if it really happens because very often after you file a refund suit, the government attorney (in the Justice
    Department) will consider whether or not to settle the case. Most of the
    time the government attorney will consider the likelihood that you will
    win (and maybe set a precedent for all other taxpayers) when he or she
    decided how much to offer you to end the case.

    ReplyDelete
  36. Thanks.

    I am aware of the settlement opportunities once a suit is filed. When I have a case at prelitigation administrative phase on a tough issue where I think the Appeals officer is not adequately assessing the litigating hazards, I encourage the involvement of an IRS attorney who has actually litigated cases. One of my early anecdotes is from an incident in about 1987 where, in a very large case, we offered the Appeals officer 25% on the tax and 0% on the civil fraud penalty the Agent asserted. I begged him to involve a litigator to settle. He refused. So, we had to file a Tax Court petition. Before even filing an answer, the IRS attorney called to advise that they were giving up the whole adjustment -- everything -- based on the submissions to the Appeals Office. In other words the Appeals Officer walked away from a very large amount of money based on the 25% settlement offer, which my client felt was just a nuisance offer -- to buy his way out of dealing with the IRS further.

    So, I know we will have another settlement opportunity who will understand real litigating hazards and will have experience as to what real juries do in cases that turn on credibility of the key witness.

    Maybe I can use a variation of the My Cousin Vinny opening argument, with embellishment for the case. It would go something like this -- You will hear from [Name of Person] who will testify truthfully that he/she did not know of the account during the years in issue (if he/she ever knew about it) and that he/she had no reason to know about it and did not intentionally blind himself/herself to its existence. If you accept her testimony, then all of the objective facts you will here is consistent, and everything the Government will throw in to confuse you is bullshit. Thank you.

    Vinny said it in fewer words, so I will try to shrink it down.

    As to attorneys fees, I am not sure that attorneys fees are available. This is not a tax code case where they could be available. I have not researched whether they are available for FBAR refund suits. But, in any event, statutory attorneys fees rates are usually less than half of the actual charge by attorneys who litigate these matters.

    Jack Townsend

    ReplyDelete
  37. Jack lol...if I were your client I would insist that it is worth researching if outside a tax code case attorney fees are available even if statutory attorneys fees rates are less than half of the actual charge by attorneys who litigate these matters. Such litigation fees are usually beyond $25K and up

    ReplyDelete
  38. Ron, your facts are not very good. I think the agent is likely going to consider you willful. My case is similar, although my excuse was that I thought only accounts that produced US sourced income required reporting for tax purposes on the 1040. For several years I reported the income from US stocks and bonds held in my foreign bank, but I never reported interest income from cayman dollar savings accounts or rental income on my Cayman home when living in the USA. I told my tax preparer about my investment accounts that had US sourced income, but did not feel I had to disclose my other accounts. I never moved a cent from the USA to Cayman and always moved money from Cayman to the USA . The IRS did not buy my excuse.

    ReplyDelete
  39. Sorry Jack but I just have to post this quote from a tax lawyer/CPA : “FATCA is an enforcement mechanism, not an actual tax.”

    That’s akin to saying that a victim of strangulation didn’t die as a
    result of the murder’s hands on his throat, but simply due to lack of
    oxygen.

    ReplyDelete
  40. UStax,

    That is a description for all sorts of U.S. requirements to encourage compliance -- these include withholding and reporting of wages to the IRS which is a mechanism to insure that the wage earner pays tax, Forms 1099 reporting payments to independent contractors, Forms 1009-INT reporting interest paid by financial institutions, etc. All of those are tax enforcement mechanisms which are different than the tax.

    FATCA is just an extension for reporting the receipt of income and encouraging the U.S. taxpayer to report and pay tax.

    These types of enforcement mechanisms are necessary to support an income tax. I think most tax professionals would not agree with your "akin to" analysis, although I can understand how you derived that analysis.

    Jack Townsend

    ReplyDelete
  41. Jack / Others,


    I am about to file my SDOP certification and have a question on the years to file.. I applied for extension for 2013 and filed my 2013 tax around June this year (before SDOP was introduced)


    Now I need to amend my 2013 with a few changes.. so I should file 2013, 2012 and 2011 or do I need to include 2010 also?


    Best!!

    ReplyDelete
  42. As to payment of attorney fees, I recall reading somewhere that the amount has a very low hourly rate which might be only 10% of what a good lawyer charges.

    ReplyDelete
  43. Are you a tax attorney also?

    ReplyDelete
  44. It is higher than 10 %. Attorneys fees are all over the lot, but I suspect that a good attorney for the job can be had for $600-1,000 per hour. My recollection is that the fee allowable in tax cases is just less than $200 per hour (at least for tax cases, and this is not a tax case, but the award, if it can be achieved at all, is likely to be in that range).

    Now, having said that, I believe that there are good lawyers who charge less than $600-$1,000. The problem is locating that good lawyer. So many charge less because the market says they are worth less, and, unfortunately, distinguishing the good lawyer who charges less and the lawyers who are not good who charge less is very difficult.

    Jack Townsend

    ReplyDelete
  45. That is a good question and has been discussed before in these comments. The problem is that, the way the web guidance is worded would say that you amennd 2010 through 2014. One solution might be to file SDOP on October 16, 2014, which is not that far away.

    Jack Townsend

    ReplyDelete
  46. At what stage were you when the IRS did not buy your excuse? Were you at opt out, at streamlined transition or in straight SDOP?

    Jack Townsend

    ReplyDelete
  47. Oh yes the favorite years to include question again :)...

    Jack, two related questions:
    1. If one does SDOP after Oct 15th, and they have already done 2013 returns & Fbar CORRECTLY, should SDOP only include tax amends for 2011 & 2012? and 5 fbars (2008 to 2012)? Is there any harm in including 2010 amendment if it had some unreported income then? My fear is if them or their "system" rejecting things because one included a 2010 amendment when it's 3 year statute has passed.

    The IRM guidance has these two pieces which I believe relate to my question.

    "NOTE:
    If the taxpayer completes the certification for only one or two tax
    years, and submits the same number of amended returns, do not question
    whether additional years should have been submitted. As long as the tax
    years listed on the certification are filed, accept that the number is correct."

    And second bullet under paragraph 8 (page 9)

    "8. Accounts Management will perform the following actions prior to adjusting accounts under the SDO:
    Review each tax year for statute consideration. Refer to Statutes for clearance or assessment when necessary. See IRM 25.6 Statute of Limitations"

    ReplyDelete
  48. My transition to SDOP was accepted. I am a minnow with 150K of high balance over a few accounts. Source of all funds was non U.S. i.e. not transferred to foreign country. I had tax due of around 5K over 8 years. All along IRS encouraged people to join OVDI and opt out. I strongly feel that that was not the right policy and they should have had the SDOP program back then. After 2 years into the program I have ended up paying more for lawyer and CPA than my penalty. Loss of my valuable time is priceless.

    ReplyDelete
  49. I cannot believe that our tax dollars are used to play such games... against the Taxpayer, that a person of Jacks stature must play the 'chicken' game with the IRS. Now, I can understand why some people are so down on Government and want to cut spending on Govt.
    I came to the US as an immigrant 30+ years back and have never felt this way till now- I am very dissapointed at the integrity of the IRS. They remind me of the most negative aspects of Govt.
    Faced with the Tea Party, the IRS tucks in their tails including their chief Loris Lerner, who resigned . But it sure is fun to beat up on a bunch of foreign born - much easier pickin's .
    Sorry, but this is not about the fine attorneys such as Jack who would help defend us, but rather about an abuse of power from the IRS's petty low level employees.

    ReplyDelete
  50. This is
    really nice. Your information is interesting. Thanks for sharing this article

    Financial Planners in Chennai

    ReplyDelete
  51. Blackseal1234, I hope you don't mind me asking: What was your overall tax deficiency (ball-parked in number of figures/order-of-magnitude) and which route did you go (OVDP, optout...)? If you went a route that had an audit, did the IRS say it was willful? I'm asking because I'm trying to see general tendencies of how the IRS sees facts & circumstances (even if there is random noise based on the examiner), and I interpret yours to be not that egregious (of course, I don't know anything else about your case and I'm a layman).

    ReplyDelete
  52. I am not sure what exactly you are asking? If you wait until after 10/15/14, the only years within the scope of the SDOP are 2011, 2012 and 2013. Since 2013 is correct both as to 1040 and FBAR, the only submissions you would make are 2011 and 2012.

    Now, assuming that the 2010 year is otherwise closed, why file an amended return for that year? That is what I don't understand. Please explain.

    Jack Townsend

    ReplyDelete
  53. .......After 2 years into the program I have ended up paying more for lawyer and CPA than my penalty........
    Well that is why I call it the TAX Bermuda Triangle and I really feel strongly about tax lawyers accepting a lot more pro bono work

    ReplyDelete
  54. CONGRATULATIONS ANON! Loss of valuable times is priceless you said? Absolutely, and how about loss of sleep, depression, and other health issues as a result? Some people are at that point!

    ReplyDelete
  55. How long or detailed was your statement of facts and circumstances? Did you have an attorney draft it for you? Did the IRS call your tax preparer if you used one? How long did it take the IRS to get you accepted? thanks.

    ReplyDelete
  56. Thanks Balckseal1234. What happened when they did not accept your statement? Did they consider you willful? What were the consequences of considering you willful? Were you in the OVDP? Did they send you back to OVDP if you were in it? Any other problems?

    ReplyDelete
  57. I still don't have an 906, but when asked point blank the agent said he thought my actions were willful, and would likely not support a transition request. The likely penalty under the 906 will be around 2 million mostly because of the value of my Cayman home. The likely penalty under opt out 100,000 one year max willful . Under transition $58,000

    ReplyDelete
  58. where does a whale start and a minnow stop with regards to high balance ?
    With $150K of high balance I think you are in the top 20% bracket in the US economic class system.

    ReplyDelete
  59. My case is not egregious. But the numbers are big, and the IRS assume big numbers mean willful and the opportunity for big revenue. My route was OVDI . I am still in the program waiting on a decision to accept transition. My overall tax deficiency over 6 years was 300,000, mostly created in one year by the sale of my home which was acquired in cayman dollars when I lived in cayman. I am a Cayman citizen who moved to the USA on a green card. I left my home in cayman and rented it because I always planned to return to Cayman when I finished working in the USA. Never took any of my earnings in the USA and sent to Cayman.Always moved money that was created in cayman before I got my green card to the USA if I needed it.I left my rental income from my Cayman home in Cayman bank savings account. I moved to the USA in 2006 and discovered my FBAR filing failure in 2011 when the new form was required to be filed with your 1040 The FATCA form.

    ReplyDelete
  60. No kidding. Been at this thing 2.5 year and legal and accounting costs have topped 150,000 and still don't have a 906. The USA really needs a better individual tax system. Other countries have successful tax systems that relie on tax at point of consumption/purchase. The US states raise their money this way, the fed government just needs to tack on a surplus tax. Then dissolve the IRS, know requirement for them. If you think the rich should pay more have luxury taxes. Want a BMW, well pay a higher sales tax. Want to smoke or drink pay a higher sales tax on cigs and alcohol. There are many countries that don't even have income tax reporting.

    ReplyDelete
  61. To summarize : since 2006 your 1040 only included US domestic income but you always left out income from "offshore" assets or accounts.


    ... by the sale of my home which was acquired in cayman dollars
    when I lived in cayman. VS. .....I left my home in cayman and rented it because I always planned to return to Cayman when I finished working in the USA.... These 2 statements contradict themselves a bit.

    ReplyDelete
  62. Anon,
    I am wondering on the same questions Ron has asked about your SDOP package. Appreciate your input.

    ReplyDelete
  63. Blackseal
    From what you describe, IMHO, I don't see how you could be considered willful. The relatively large #s (understandable considering a property sale and being from Cayman are being used against you. I am so sorry to hear about how you are being treated.

    So we all understand please confirm/ respond to below- it will help a lot of people:
    1. To answer Jacks Q below- you were at OVDI and the IRS OVDI agent verbally refuses to support a transition request. (This verbal response alone seems ridiculous- its clear you got unlucky with a bad agent )
    2. When did you apply in writing requesting Transition ?
    3. Did the agent give you an idea on when you would hear back from the IRS?
    4. You have not received anything in writing back from the IRS either approving or denying the transition

    ReplyDelete
  64. 1/Yes verbal response saying would not support transition request
    2/We asked the agent in writing to consider supporting transition request. The agent has not replied in writing. We have not formally applied and done all the papers work for transition, because it will be a waste of time if the agent says she will support it.
    3/No idea of how long the agent will take to complete the 906
    4/nothing in writing yet.

    ReplyDelete
  65. This site is in German, but the links in the main text should be useful. http://de.guttenplag.wikia.com/wiki/Tools,_um_Plagiate_aufzuspüren


    (Sometimes plagiarizers do end up with serious consequences, as Mr. Guttenberg found out, after his dissertation was scrutinized. He had to step down as Defense Minister.)

    ReplyDelete
  66. Coming from the Cayman Islands which has been a top tax haven destination for decades plus a large account size will be unfortunately a drag on your credibility and 2 1/2 years in OVDI without 906..... going for the record ! Of course the examiner is a "she"

    ReplyDelete
  67. Actually my examiner is a "he", it was a typo. Why do you think OVDI was the wrong strategy?

    ReplyDelete
  68. Congratulations! It would really help other people in similar situation if you could share some more info about your case.

    ReplyDelete
  69. Anon,
    A lot of us are agonizing over how to write one's NW arguments in the certification. If you are comfortable, would you mind posting a copy of your letter, redacting parts which you want to keep private? It will be a great help.


    Thanks!

    ReplyDelete
  70. Anon - I too would greatly appreciate if you can post at least parts of your NW explanation with whatever portions you are comfortable sharing. Say like a google doc link

    ReplyDelete
  71. Sorry Jack, I realize my post wasn't very clear I agree that 2010 need not be included if one files SDOP after Oct 15th '14.



    One thing that did pop up in my mind is say one files SDOP Oct first week. He includes 2010 amendment. Now, by the time an agent picks up the SDOP paper package, it may be 3+ months or longer...

    2010 would be closed by then I suppose they'd go by the date put on the 1040x in the signature line or perhaps post mark date?

    ReplyDelete
  72. Jack,

    In the SDOP certification, it says During each year in either my 3-year covered tax return period or my 6-year covered FBAR period, my foreign financial assets subject to the 5% miscellaneous offshore penalty were as follows:





    They provide six tables to fill in year end balance for each account and year account was opened. I am unclear if this information has to be entered for 3 years or 6. For obvious reasons I prefer entering details for 3 years.

    Can you help clarify?

    Thanks!

    ReplyDelete
  73. 6 years (which is the covered period for filing FBARs). The instruction states:

    The Title 26 miscellaneous offshore penalty is equal to 5 percent of the highest aggregate balance/value of the taxpayer’s foreign financial assets that are subject to the miscellaneous offshore penalty during the years in the covered tax return period and the covered FBAR period.

    I think that is pretty clear and obviously there is no indication that the IRS wanted blanks on the certification form.

    Jack Townsend

    ReplyDelete
  74. Wikipedia article with info on plagiarism detection and links to free and paid plagiarism/copyright infringement software: http://en.wikipedia.org/wiki/Plagiarism_detection

    ReplyDelete
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    ReplyDelete
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    ReplyDelete
  77. Does anyone know if the IRS will disqualify people for the SFOP if they have in the three year period required to file 800 dollars in taxes due from interest not declared in the US? What is the maximum in US activity for foreigners that they will tolerate?

    ReplyDelete
  78. disqus_2rkdigpX4iApril 28, 2015 at 9:50 AM

    Can one actually submit 7 years in an outright domestic streamline? It seems one can tell the truth about being nonwillful for 6 years but anything beyind that requires one to lie and enter the OVDP or OVDI today in 2015......any feedback is appreciated!

    ReplyDelete
  79. Why would you submit anymore years than you had to.? Lets say you were willful 7 years ago, but are only required to file 6 years of FBAR returns and 3 years of amended tax returns. Why would you admit to being willful or lie about being non-willful, when you don't even have to submit or comment on something 7years old. I know a few people that got their act clean in 2011, but only just entered the new streamlined program. They were just sitting back hopeful enough time would slip by and now they are scott free. If they had entered the OVDP they would have been nailed back to 2008 with amended returns and penalties and back taxes and interest. Instead under the new streamlined they had no amended returns to file and only FBARS for 2009,and 2010. The poor people that came forward earlier under the normal OVDP got nailed for coming forward early rather than waiting to June 2014. That is why I believe there is an opportunity for a class action suit, by all the people that entered the OVDP from 2009 up until this new streamlined program. They just need a law firm to champion the suit. I keep asking for a smart lawyer to pick this stick up. It would not cost the participants a thing as the lawyer would just take a percentage of whatever he could claw back. I think the claw back pot is a least 5 billion. Even a small percentage return should tempt a good law firm.

    ReplyDelete
  80. drdv, you have to look at the whole picture, not isolated facts. Everyone has a mix of good and bad facts and is a different shade of gray. Why did you have and keep the foreign accounts? Legitimate reasons or tax evasion? How likely were you to have known about the FBAR, are you a high school dropout or a CPA? What did you do when you found out about FBAR? Comply or try to hide for a couple of years?


    The big question is whether or not you were nonwillful. Amount of unpaid taxes is marginally relevant in that it would be hard to make a case (absent other evidence) that you were willfully evading a small amount of taxes. But I can think of scenarios where someone having a small amount of unpaid tax would be clearly willfu, and someone being nonwillful but owed a large amount of tax. I had much more unpaid tax but also relatively good facts so my transition to SDOP was approved. But there's a subjective element as well (depends on the judgement of the agent and manager who handle your case.)


    You're referring to SFOP and "foreigners" so I could guess that you were living outside the US and therefore had accounts in your country of residence. That's a good explanation.

    ReplyDelete
  81. Same answer as Jack in my case (transition to SDOP.) My case did not get sent to a different office, which would have been the case if I had opted out.

    ReplyDelete
  82. Jack I have been in the OVDP program for 3.5 years and have yet to have a resolution after opting out 6 months ago. Can you or anyone else that reads this blog comment on whether such a time frame is usual. I have filed protective orders on the SOL for refunds and these are already a year old. The IRS seems to have come to a grinding halt on processing opt outs and refunds. My lawyer has said she does not want to aggressively pursue the refunds while the agent is still reviewing our opt out case. Once you file a protective order does it remain in effect until the resolution of your case, or can the protective order be subject to a SOL

    ReplyDelete
  83. Blackseal1234,

    That does seem like a long period. I will have to say, however, that I have a couple of OVDP cases that have been pending longer. And, in those cases, they have not asked for refresher consents to extend the statutes of limitations, so as a practical matter they are done. Of course, we did file such amended returns as required and any tax reported is lost, but there will be no FBAR penalty because the statutes have closed.

    Now as to the refunds you talk about, you need to watch the refund statute of limitations. I presume that you filed a protective claim for refund (needed in case of opt out). So, that you are talking about whether you file a suit for refund (that is the only thing additional to do now). Merely filing the suit will cost you some unnecessary money. So, I would suggest that you just wait. At the conclusion of the opt out process, the IRS will grant refunds for the otherwise closed income tax years (there should be some) or deny the claims (in which case you can pursue the suit for refund if appropriate).

    Jack Townsend

    ReplyDelete
  84. 3.5 years is not unusual. It took 3 years from the time I requested preclearance to the time I had to decide whether to opt out or bite the 27.5% bullet (at which time Streamline had been announced so I applied to transition.) Just getting the 906 countersigned took 5 months.
    Time is on your side. Come June 30 another FBAR year is outside SOL.
    If the ball is on the IRS's court I see no benefit in contacting them to speed things along.

    ReplyDelete
  85. "Of the
    171 judges who responded, 126 had thresholds that were 90% or higher.
    Eleven judges had thresholds of 75% or below, one of whom was satisfied
    with a 50% probability. The other study was conducted among Illinois
    state court judges. On a scale of 1 to 10, the mean level of certainty
    in this study was 8.9, with a median of 8.8; 63% of the judges responded
    with a level of 9.0 or higher. Most (but not all) judges, then, tend
    to see the government's burden much the way Blackstone did [about 90%]. "

    Do you have a link to this Study?

    ReplyDelete
  86. If beyond a reasonable doubt is only 90% certainty then does that mean that 1 in 10 people convicted "beyond a reasonable doubt" are innocent?
    If it is 95%, then 1 in 20 would be innocent. In my mind that is far too many innocent people being found guilty.

    ReplyDelete

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