Readers who are tax professionals will know that there are several opportunities to stop a federal tax indictment. These are (following the general progression of from the IRS through indictment): (1) if in a civil audit (often referred to as an eggshell audit), to avoid having the civil agent refer the case to CI; (2) if in a CI investigation, to convince the principal CI Special Agent not to recommend to his superiors that the case be referred to DOJ Tax CES; (3) then, in a meeting with CI Special Agent in Charge or his delegate and the CI Counsel, to convince them not to refer the case to DOJ Tax CES, (4) then at DOJ Tax CES, to convince the reviewing attorney not to authorize the indictment; and (5) then with the AUSA or DOJ Tax attorney who will actually present the case to the grand jury to convince him or her that the indictment should not be sought or pursued. Others are involved in the process as well (DOJ Tax CES decision makers and the AUSA's boss in the local district), so all presentations should be made with them in mind. But the foregoing principal steps are the ones where there is an opportunity to stop the indictment.
Mr. May's article starts with the truism that, if you wait until the indictment, you have probably already lost. Here is Mr. May's introduction to that truism (footnote omitted and emphasis supplied):
Most [criminal] cases in federal court are not defendable. This is the reason 97 percent of cases in federal court end up as pleas. Of the 3 percent that go to trial, probably 50 percent are not defendable either, but the client is a level 42 and has nothing to lose. Now we are down to 50 percent of the 3 percent. Those are the cases that can be won. So why would defense attorneys want to disclose their defense to the government and lose the opportunity for surprise?
