Tuesday, December 6, 2016

Gelfand Article on Defending a Criminal Tax Case (12/6/16)

I want to point readers, particularly students, to a very good recent article by Justin Gelfand, Defending a Criminal Tax Case, Champion 40 (April 2016), here.  Justin is a seasoned practitioner with DOJ Tax CES and private practice experience.  Justin's bio page is here.

Justin opens with DOJ Tax's high 90+% conviction rate (virtually all by plea agreements) and two prominent instances of acquittals.  He then states:
This is not to say that every tax case should be tried and will be won. The Justice Department wins the lion’s share of tax cases that proceed to trial — many of which are investigated by stellar federal agents and prosecuted by talented financial fraud prosecutors. A savvy defense attorney will realize that certain tax cases should never see a courtroom and that the focus should be on negotiating the best deal. 
Notwithstanding the government’s 90 percent conviction rate, when a tax case hits defense counsel’s desk, counsel should think outside the box and litigate creatively because many a criminal tax case can be won, negotiated down to a favorable plea, and/or resolved with a lenient sentence.
Then Justin offers key "Tricks of the Trade" with a short introduction to the tricks.

  • Request an IRS SAC Conference and DOJ Tax Conference.
  • Obtain the tax preparer’s work papers.
  • File a FOIA request.
  • Identify and interview key witnesses early  [Good stuff here about the IRS-CI interview of the tax preparer]
  • Read the indictment carefully.
  • Consider moving for a bill of particulars.
  • Request IRS records in discovery.
  • Send the IRS a preservation letter.
  • Retain a Kovel accountant.
  • Cross-examine the government’s revenue agent.
  • Consider statutes when negotiating a plea.
  • Cross-examine the IRS-CI special agent.
  • Analyze sentencing issues thoroughly.
A very good read.  Thanks, Justin.

No comments:

Post a Comment

Comments are moderated. Jack Townsend will review and approve comments only to make sure the comments are appropriate. Although comments can be made anonymously, please identify yourself (either by real name or pseudonymn) so that, over a few comments, readers will be able to better judge whether to read the comments and respond to the comments.