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.

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