tag:blogger.com,1999:blog-1519969502186924526.post6666152221352743417..comments2023-10-24T08:00:53.865-05:00Comments on Federal Tax Crimes: Fourth Circuit Reverses Williams on Willfulness (7/20/12; revised 7/24/12)Jack Townsendhttp://www.blogger.com/profile/14469823736335455874noreply@blogger.comBlogger10125tag:blogger.com,1999:blog-1519969502186924526.post-81366576328332986132012-07-25T08:42:32.829-05:002012-07-25T08:42:32.829-05:00The tolling requirement for tax crimes is in Secti...The tolling requirement for tax crimes is in Section 6531 (flush language at end). That does not apply to non Title 26 crimes, including the FBAR crime.<br /><br />However, keep in mind that, if a fugitive, the statute will toll. 18 U.S.C. § 3290. And, one cannot now exclude the possibility that the Wartime Suspension of Limitations Act might suspend all limitations for tax crimes and other crimes involving fraud against the United States. See Wartime Suspension of Limitations Act and Tax Fraud (6/27/12), here: http://federaltaxcrimes.blogspot.com/2012/06/wartime-suspension-of-limitations-act.html<br /><br />Jack TownsendJackTownsendnoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-68009845368913288792012-07-24T23:15:13.264-05:002012-07-24T23:15:13.264-05:00The SOL is tolled when the person is absent from t...The SOL is tolled when the person is absent from the US. Since FBAR is governed by a different title, title 31, do the tolling provisions also apply to FBAR. <br /><br />To simplify, does absence from US toll the SOL for FBAR purposes? It appears that tolling does not apply to FBAR cases but wanted to confirmAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-49897985215719514412012-07-24T19:13:04.029-05:002012-07-24T19:13:04.029-05:00The Fourth Circuit told the world that it is doing...The Fourth Circuit told the world that it is doing nothing other than deciding the case and is not sending any message, except to the extent that its logic makes sense. Its logic, in my judgment, does not make sense.<br /><br />Of course, I am just a lone wolf rejecting the logic of an opinion that the Fourth Circuit had no confidence in. So, who am I.<br /><br />Jack TownsendJackTownsendnoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-85738586033202004302012-07-24T19:00:11.190-05:002012-07-24T19:00:11.190-05:00I believe that the 4th CCA is sending a sub silenc...I believe that the 4th CCA is sending a sub silencio message that the subjective test of Cheek does not apply to a FTF an FBAR case. It seems to suggest a general intent willfulness without the subjective "good faith belief" component. Since Cheek specifically references the unique complexity of the tax law in reaching the "good faith belief" part of the decision and the FTF an FBAR is a Title 31 crime, there is some logic to that view since arguably reporting the existence of a foreign bak account is not rocket science.Bobnoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-31052735146214425012012-07-23T17:39:32.214-05:002012-07-23T17:39:32.214-05:00Your questions are good questions. I personally t...Your questions are good questions. I personally think that Williams is a thin reed for the IRS to start assessing the willful penalty where the facts are not as bad as Williams and extrapolate that DOJ is unlikely to bring cases trying to apply the case where the facts are not as bad.<br /><br />In my view, DOJ Tax can cite the case all it wants, but, if the Fourth Circuit as author of the opinion, did not want it to be precedential, why would any other court want it to be precedential. <br /><br />The opinion can only have any effect if it is persuasive. I think there is enough there to punch at that courts would not find it persuasive in facts that are not as bad as Williams.<br /><br />Just my speculation.<br /><br />Best,<br /><br />Jack TownsendJackTownsendnoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-90689662839326244342012-07-23T15:31:41.895-05:002012-07-23T15:31:41.895-05:00Jack
What do you think DoJ Tax/IRS will take away...Jack<br /><br />What do you think DoJ Tax/IRS will take away from the saga of this case (from district court through appeals court) ? Will they take it as a sign that they can cite this case (unpublished or not) and start assessing FBAR penalties even in cases where there aren't so many bad facts ? Or will they take some caution in realizing that 2 out of 4 judges (one district, one appellate) seemed to reject the FBAR penalties, and that in a case without so many bad facts, a judge or an appellate panel could well decide the reverse ? <br /><br />One would hope that DoJ Tax/the IRS would seek to apply the penalty only in cases where it is clearly applicable rather than threatening the use of massive penalties to coerce taxpayers into paying smaller penalties (via VD programs etc.). Williams is a bit of a borderline case, since he was clearly guilty of a willful violation, but he may well have been telling the truth when he said he didn't know of the FBAR filing duty. <br /> . <br /><br />I know that your personal experience with DoJ Tax is dated, but perhaps you can shed some light on their mindset.FTnoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-22240781073785987822012-07-20T17:00:58.828-05:002012-07-20T17:00:58.828-05:00Jack
Arguably, the Supreme Court's decision i...Jack<br /><br />Arguably, the Supreme Court's decision in the patent case Global Tech Appliances recently, where it seemed to set a high bar for 'willful blindness' and clearly distinguished recklessness from willfulness should have guided the Appellate Court's decision differently. <br /><br />So do you think this recent decision means DoJ/IRS would seek to apply the willfulness standard even in cases where facts are much better for the taxpayer (if the only real issue is an unfilled or incorrectly filled Schedule B Question) ? it does seem like the majority looked a lot at the surrounding facts (very bad) in Williams case, so they were not guided solely by that fact. [ It does also seem like Williams' lawyer made a mistake in not pointing out the distinguishing factor in the Sturman case -- that Sturman actually admitted knowledge of this question and failed to answer it]. I think there are clearly 'hazards of litigation' for the DoJ in any case and developing willfulness requires significant effort on the IRS part, so that may be a factor that still limits the IRS -- at least in cases where there is not sufficient evidence to establish civil fraud on the tax return.Researchernoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-47644090841896830232012-07-20T15:25:26.957-05:002012-07-20T15:25:26.957-05:00See the posting at the end of the blog on this iss...See the posting at the end of the blog on this issue. To say that you can cite an opinion is not the same as saying that it is precedential. I think all holdings / decisions should be precedential. That is not to say that they should necessarily bind a future court, because courts can always overrule their precedents (in the U.S. courts of appeals that requires en banc review). But, I think, when a court knows the opinion will be precedential, it will be more careful in how it crafts the opinion.<br /><br />Moreover, in areas where guidance from the courts is needed (as in the FBAR area), the public and the other courts and other panels are entitled to a decision that the panel itself is willing to live with in other cases.<br /><br />Jack TownsendJackTownsendnoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-31352807928206685502012-07-20T13:00:32.953-05:002012-07-20T13:00:32.953-05:00I think there may be a problem with the link to th...I think there may be a problem with the link to the opinion.Reubennoreply@blogger.comtag:blogger.com,1999:blog-1519969502186924526.post-49860538774820826972012-07-20T12:49:24.313-05:002012-07-20T12:49:24.313-05:00Jack
Does it make any practical difference whethe...Jack<br /><br />Does it make any practical difference whether an opinion is precedential or not ? I gather that lawyers can cite unpublished opinions now.Anonnoreply@blogger.com