Another UBS Customer Pleads (2/21/15)

A DOJ Press Release, here, announces another plea for a UBS and Clariden Leu depositor.  The plea is for tax obstruction, Section 7212(a), here.  Key excerpts from the press release:

According to court documents and statements, Georges Briguet, a naturalized U.S. citizen, had Swiss financial accounts at UBS AG and at Clariden Leu Ltd., which was a wholly owned subsidiary of Credit Suisse AG.  He opened the UBS account in Switzerland in or around 1992, with approximately 7 million Swiss francs.  In 2008, he transferred the UBS funds to a numbered account at Clariden Leu in Switzerland, which he maintained until at least 2011.  For tax years 2001 through 2010, Briguet filed false federal income tax returns on which he failed to report his foreign financial accounts, failed to report any income earned thereon and failed to pay any taxes on such foreign income.  

In addition, Briguet was interviewed by an IRS revenue agent who was conducting a civil audit.  During the interview, Briguet falsely stated that he had no foreign income and no foreign financial accounts.  He then later repeated those false statements to an IRS special agent who interviewed Briguet as part of a criminal investigation.  

At sentencing, Briguet faces a statutory maximum sentence of three years in prison and a $250,000 fine.  As part of his plea agreement, Briguet has agreed to pay the IRS restitution in the amount of $169,935.

JAT Comments:

1. The restitution would be for the tax involved.  There is no restitution for the related FBAR violation (not charged but apparently admitted) because there is no financial loss related to the FBAR crime.  The restitution seems low for the number of years involved.  Note, in this regard, that the restitution is contractual in the plea agreement.  Hence, it can be awarded even though, absent plea or some other benefit in sentencing, it is not generally available for Title 26 crimes.  Also, note that contractual restitution can include amounts beyond the count(s) of conviction. As to the amount, the defendant may have already paid some of the amount involved, but the Government might want it to still be included in the restitution number to assure the benefit of the provisions assuring that the Defendant can't contest the amount.
2. This case is unusual because, apparently not counseled below or during the two IRS interviews, he lied about the accounts.  The press release does not state whether he was represented at those interviews.
3. Because of the false statements, the Government could have charged him with 18 USC 1001, here, false statements, a 5-year felony, or 7212(a), here, tax obstruction, also a 3-year felony.   As generally with plea agreements charges are not made or, if made, dropped for the guilty plea.  In this regard, the court is unlikely to impose sentence in excess of 3-years -- the statutory maximum for the count of conviction.  So, even if there had been more charges to which the defendant pled, the sentencing likely would not be affected..(For this reason, the PSR often notifies the court of other possible charges that the pattern of conduct involved but states that, based on the pattern, the sentence would not be greater than allowed for the plea to the lesser number of charges.)
4. Note that the lie during the IRS interviews, in addition to being a separate crime that could have been charged as noted in paragraph 3, could have refreshed the statute on the original evasion years -- even years for which the statute had otherwise expired.  United States v. Beacon Brass Co., Inc., 344 U.S. 43 (1952), here.  That would depend upon the false answers given.
5. In these cases, in announcing the plea, the Government often announces a penalty number that is the FBAR civil penalty imposed.  This announcement does not do that.