Credit Suisse Taking Another Rap on the Knuckles (4/22/22)

David Cay Johnston. Wikipedia here, a prolific author of books and articles on the crimes of the rich, has this article on Credit Suisse, Repeat felon Swiss bank may finally lose privileged American status (RawStory 4/21/22), here.  The article reports that the Department of Labor is acting to take away a favored U.S. status, Qualified Professional Asset Manager, as a result of its numerous crimes.  Johnston reports Credit Suisse’s “rap sheet” as:

Rap Sheet

Credit Suisse has a long and thoroughly documented history of refusing to turn over money due to heirs of Holocaust victims, helping super-rich Americans cheat on their taxes and making loans using unusual terms that turned into disasters for the borrowers. One of its most recent felonies was punished with a $175.5 million fine. That’s chump change for a bank with assets of about $1.6 trillion. The fine was barely 1/10,000th of those assets.

TIGTA Report on IRS Effort to Enforce FATCA (4/12/22)

TIGTA issued this report: TIGTA, Additional Actions Are Needed to Address Non-Filing and Non-Reporting Compliance Under the Foreign Account Tax Compliance Act (Report # 2022-30-019 4/7/22), here.  I excerpt the highlights below, but for those practicing in this area, there is a lot of detail.  Good stuff in those details.

Why TIGTA Did This Audit

While taxpayers can hold offshore accounts for a number of legitimate reasons, some taxpayers have also used such accounts to hide income and evade taxes. The passage of the Foreign Account Tax Compliance Act (FATCA) sought to reduce tax evasion by creating greater transparency and accountability with respect to offshore accounts and other assets held by U.S. taxpayers.

This audit was initiated to evaluate the IRS’s efforts to use information collected under FATCA to improve taxpayer compliance.

Impact on Tax Administration

Individual taxpayers are required to file Form 8938, Statement of Specified Foreign Financial Assets, with their income tax returns if the aggregate value of the assets exceeds certain dollar thresholds. Foreign financial institutions (FFI) are required to File Form 8966, FATCA Report, to report information about financial accounts in which U.S. taxpayers hold certain “ownership interests.”

The IRS established Campaign  896 - Offshore Private Banking, to address tax noncompliance related to taxpayers’ failure to report income generated and information reporting associated with offshore banking accounts, and Campaign 975 - FATCA Filing Accuracy, which seeks to identify the FFIs that maintain specified foreign financial accounts for U.S. individuals but did not submit Form 8966.

What TIGTA Found

Due to resource limitations, the IRS has significantly departed from its original comprehensive FATCA Compliance Roadmap in favor of a more limited compliance effort. As part of its effort, the Large Business and  International (LB&I) Division established two campaigns to identify noncompliance with the individual and FFI provisions of FATCA. The chart below reflects nearly $574 million of FATCA-related implementation and maintenance costs compared against the LB&I Division’s campaign compliance results from the IRS’s systemic approach to address FATCA noncompliance, as well as FATCA-related assessments from field examinations.

District Court Concludes More Likely Than Not that President Trump and John Eastman Committed the Defraud Conspiracy (4/4/22)

 Readers of this blog will recall that I have written often about the defraud conspiracy and its interpretation in  Hammerschmidt v. United States, 265 U.S. 182, 188 (1924).  That interpretation, which I sometimes call the Hammerschmidt spin, provides a definition for defraud that expands beyond the definition of fraud in the criminal law and is thus a judicial expansion.  I and others have expressed concern about that expansion.  See e.g., my most recent offering which summarizes the concern. District Court Rejects Claim That Supreme Court Expansion of Defraud Conspiracy Is In Error (3/24/22; 3/27/22), here.   I usually address the concern in a tax setting where the Hammerschmidt spin is referred to as a Klein conspiracy.

Those who have been watching the news may have picked up that a federal district judge in California recently deployed the Hammerschmidt spin in determining whether certain communications by John Eastman, Trump’s putative attorney for attempting to prevent the certification of Biden as President, including the events surrounding the siege and breach of the Capitol  on January 6.  See Eastman v. Thompson  (C.D. Cal. Dkt # 8:22-cv-00099-DOC-DFM 3/8/22), CL here and GS here [to come].  In rejecting various claims of privilege or right to withhold  documents, the Court concluded inter alia (pp. 36-39) that Eastman and Trump likely committed the defraud conspiracy crime.   I thought readers interested in this issue may like the analysis which I copy and paste here (I leave the footnote numbers in the text but omit the footnotes except for the footnote citation to Hammerschmidt.):

ii. Conspiracy to Defraud the United States

            The Select Committee also alleges that President Trump, Dr. Eastman, and others conspired to defraud the United States by disrupting the electoral count, in violation of 18 U.S.C. § 371.242 That crime requires that (1) at least two people entered into an agreement to obstruct a lawful function of the government (2) by deceitful or dishonest means, and (3) that a [*37] member of the conspiracy engaged in at least one overt act in furtherance of the agreement.243

            As the Court discussed at length above,244 the evidence demonstrates that President Trump likely attempted to obstruct the Joint Session of Congress on January 6, 2021. While the Court earlier analyzed those actions as attempts to obstruct an “official proceeding,” Congress convening to count electoral votes is also a “lawful function of government” within the meaning of 18 U.S.C. § 371, which Dr. Eastman does not dispute. An “agreement” between co-conspirators need not be express and can be inferred from the conspirators’ conduct.245 There is strong circumstantial evidence to show that there was likely an agreement between President Trump and Dr. Eastman to enact the plan articulated in Dr. Eastman’s memo. In the days leading up to January 6, Dr. Eastman and President Trump had two meetings with high-ranking officials to advance the plan. On January 4, President Trump and Dr. Eastman hosted a meeting in the Oval Office to persuade Vice President Pence to carry out the plan. The next day, President Trump sent Dr. Eastman to continue discussions with the Vice President’s staff, in which Vice President Pence’s counsel perceived Dr. Eastman as the President’s representative.246 Leading small meetings in the heart of the White House implies an agreement between the President and Dr. Eastman and a shared goal of advancing the electoral count plan. The strength of this agreement was evident from President Trump’s praise for Dr. Eastman and his plan in his January 6 speech on the Ellipse: “John is one of the most brilliant lawyers in the country, and he looked at this and he said, ‘What an absolute disgrace that this can be happening to our Constitution.’”247 Based on these repeated meetings and statements, the evidence shows that an agreement to enact the electoral count plan likely existed between President Trump and Dr. Eastman.

            Deceitful or dishonest means Obstruction of a lawful government function violates § 371 when it is carried out “by [*38] deceit, craft or trickery, or at least by means that are dishonest.”248 While acting on a “good faith misunderstanding” of the law is not dishonest, “merely disagreeing with the law does not constitute a good faith misunderstanding . . . because all persons have a duty to obey the law whether or not they agree with it.”249
    n248 Hammerschmidt v. United States, 265 U.S. 182, 188 (1924).

More Thrashing in Schwarzbaum on Effect of Eleventh Circuit's Remand to Remand to IRS on Statute of Limitations (4/1/22; 4/7/22)

I have previously written on the case of United States v. Schwarzbaum (S.D. Fla. Dkt # 18-cv-81147-BLOOM/Reinhart CourtListener Dkt. Entries here).  All my posts can be seen with a blog search on Schwarzbaum here. Where the posts are presented first by relevance but a link at the top permits reshuffling.

A good place to start is 11th Cir. Remands For IRS To Re-Determine FBAR Penalties After Affirming Original Calculation Was Arbitrary And Capricious (Federal Tax Procedure Blog 1/26/22), here.  Applying oft used APA procedure the Court remanded to the District Court to then remand to the IRS for correction of the deficiencies.  As I note in that blog, there are statute of limitations issue on that type of remand, such as if a corrected assessment is required, is the corrected assessment a new assessment clearly outside the statute of limitations or is it just an adjustment of the earlier assessment for statute of limitations purposes?

On remand, the brouhaha continues.  The parties now dispute the issue of whether the District Court can retain jurisdiction while the case is remanded.  The Government has moved for the District Court to retain jurisdiction.  Schwarzbaum opposes the Government’s motion, urging that the remand to the District Court concludes the jurisdiction in the District Court, requiring that the IRS make the penalty determination afresh requiring a new FBAR assessment that would now be plainly untimely.

I won’t discuss the arguments but will just link to the pleadings:

• Government's Motion Dkt. 136, here;
• Schwarzbaum’s Opposition Dkt. 141, here; and
• Government's Reply Dkt. 144, here (added to blog 4/7/22).

Those wanting further developments can periodically check the CourtListener Docket Entries here.