tag:blogger.com,1999:blog-1519969502186924526.post7883904130026709549..comments2023-10-24T08:00:53.865-05:00Comments on Federal Tax Crimes: More on the Relationship Between Tax Liability and Tax Restitution Assessed as a Tax (10/25/13)Jack Townsendhttp://www.blogger.com/profile/14469823736335455874noreply@blogger.comBlogger3125tag:blogger.com,1999:blog-1519969502186924526.post-35160470195004257322013-10-26T15:48:57.916-05:002013-10-26T15:48:57.916-05:00Nice Blog of federal tax crimes
tax preparation T...Nice Blog of federal tax crimes<br /><a href="http://www.qrgdirect.com/Best-Accounting-and-Tax-services-in-770-492-3366-Tucker-GA" rel="nofollow"> tax preparation Tucker GA</a>Peter johnnoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-50372568037225084802013-10-26T12:12:01.692-05:002013-10-26T12:12:01.692-05:00UStax: Thanks for your questions. Here are my re...UStax: Thanks for your questions. Here are my responses:<br /><br /><br />Opening paragraph: I am not aware of any case law change to the learning from McBride and Williams regarding the FBAR willful penalty.<br /><br /><br />a) Yes. My own cut on it is that willful blindness is conduct so egregious that the person can be said to have acted willfully. That seems a bit circular, but I think that is how it is applied. However, that is my cut and others may interpret it differently. But if you say that recklessness is not the same as willful blindness, there is not much left for conduct more egregious than recklessness not to be willful.<br /><br /><br />b) As the Supreme Court has interpreted willful (the element in most tax crimes and for the significant FBAR penalties (criminal and civil willful), it requires the intent to violate a known legal duty which the Supreme Court has said means specific intent to violate the law. The Supreme Court has not spoken directly as to whether deliberate ignorance can be willful under the tax law and the FBAR penalties. But it has said in a civil case involving different statutes that deliberate ignorance can be willful under those statutes. I think that the community expects that the Supreme Court, when and if it addresses the issue, will hold similarly at least for civil penalty purposes. Now, the lower courts (courts lower than the Supreme Court) seem to accept deliberate ignorance as willful for purposes of the criminal willfulness in the tax criminal statutes. So, the window of opportunity for someone who claims at worst to have acted with deliberate ignorance but without specific intent seems to be closing. Still, the Supreme Court dissent in the civil case I mention above says that it is a simple matter of interpretation: deliberate ignorance is not willfulness, interpreted as specific intent to violate the law; if the person who is liable only if willful did not know of the law he or she must have intended to violate, it really does not matter if he or she was ignorant -- he or she could not have intended to violate the law. I am probably swimming upstream on this analysis, though.<br /><br /><br />c) This is a correct interpretation of the Cheek requirement. Please note the "good faith" requirement.<br /><br /><br />d) that is the historic interpretation of the willfulness requirement. See the comments above, subject to the caveat about deliberate ignorance which may temper this a bit. Again, my cut is that, if the objective conduct, permits a jury to find that the defendant was deliberately ignorant, that would then permit the jury to find that the objective conduct of deliberate ignorance was merely masking actual knowledge of the law and intent to violate it. Rarely, is there an objective litmus test of subjective knowledge and intent; the trier of fact must draw inferences as to the ultimate existence of knowledge and intent and deliberate ignorance is just the background noise from which the inference may be drawn. At least that is my cut that may be swimming upstream.<br /><br /><br />Right now, I don't think that there is enough new that I could add to my prior postings on the issue of the role of deliberate ignorance, but will think about it.<br /><br /><br />Best regards,<br /><br /><br />Jack TownsendJack Townsendhttp://www.tjtaxlaw.com/noreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-51923508296316930362013-10-26T08:50:25.681-05:002013-10-26T08:50:25.681-05:00Jack, with reference to the links at the bottom : ...Jack, with reference to the links at the bottom : after the 2 only civil willful FBAR penalty cases McBride and Williams has there been in the last 6 month a change in actual case law with regards to a harsher application of the willful blindness penalty ?<br />a) Is it still valid as Courts have said that willful blindness must extend well beyond negligence and even recklessness ? <br />b) Is it still valid that the Supreme Court's formulation of the willfulness element of tax cases requires specific intent. Negligence, even gross negligence and even deliberate ignorance is still not specific intent ?<br />c) Is it still valid with reference to (Cheek v. United States, 498 U.S. 192 (1991) that a criminal tax liability could not attach to a person who, in good faith, is ignorant of the duty, misunderstands it, or believes that it does not exist ? <br />d) Is my interpretation still correct that although knowledge may be inferred from the defendant's behavior, one must still find that he had actual knowledge. Ignorance of the law is a defense; merely conducting actions -- the actus reus -- and even intentionally conduct those actions without the required specific intent to violate the law is a defense. However, a showing of mistake, negligence, carelessness, recklessness, or even gross negligence is not sufficient to support a finding of either willfulness or knowledge.<br />Maybe Jack if you have time an update/post with regards to the willful blindness penalty application would be great. <br /><br /> <br />http://www.lexisnexis.com/legalnewsroom/tax-law/b/federaltaxation/archive/2013/10/07/an-analysis-of-the-meaning-of-quot-willful-quot-in-the-fbar-context.aspx<br />http://federaltaxcrimes.blogspot.ch/2010/09/third-circuit-decision-in-staudtmauer.html<br />http://federaltaxcrimes.blogspot.ch/2013/01/tax-court-applies-willful-blindness-to.htmlUStaxnoreply@blogger.com