Theater of the Courtroom

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In this episode I discuss eggshell audits and what to do when it comes to filing returns for tax periods subsequent to periods under examination.

In this podcast, I discuss the important inter-connections between civil tax and criminal tax.

In this podcast, I discuss the pre-sentence investigation report. Below is a quick and dirty outline:

After conviction and prior to sentencing, a probation officer will interview the def. and prepare a PSR.

In the PSR, the probation officer will:

Calculate the defendant’s offense level and criminal history category,

State the resulting sentencing range and kinds of sentences available,

Identify any factors relevant to the kind of sentence (e.g., probation, imprisonment),

Recommend a sentence w/in the applicable sentencing range, and

Identify any basis for departing from the applicable sentencing range

The PSR includes:

The defendant’s prior criminal record,

The defendant’s financial condition, and

Information sufficient to calculate restitution

The defendant is entitled to be represented by an attorney at the interview w/ the probation officer and I strongly recommend it.

Why is the pre-sentence investigation report important? For the following two reasons:

Judges give deference to the recommendations of the probation officer. Thus, the PSR is instrumental in the sentencing judge’s determination. Both the defense and the gov’t may make formal objections to the PSR but the judge resolves all such disputes under the preponderance of the evidence standard - a low standard indeed.

Apart from the judge and sentencing, the PSR follows def. throughout his time in prison and can affect various decisions as to def. after the judge imposes sentence (i.e., the defendant’s life in prison and any period of probation or supervised release).

Procedurally, once the PSR is prepared, the probation officer will provide a copy to the def., the defendant’s attorney, and the prosecutor.

The defense and the gov’t have the opportunity to make objections to the PSR at the sentencing hearing, which consists of oral arguments before the judge. The rules of evidence do n/ apply to the admission of testimony or other evidence at the sentencing hearing.

There are three times when defense counsel can have a big impact on the sentence that the judge imposes:

Situation 1: Defense counsel bargains w/ the prosecutor.

Situation 2: Defense counsel can work w/ the probation officer independently of the prosecutor – i.e., w/o forming an agreement w/ the prosecutor as in situation one. The goal is to try and get the probation officer to include favorable facts in the PSR.

Situation 3: If the PSR contains something that you don’t like, you can make objections at the sentencing hearing that the PSR is wrong or should be modified by the judge and ask the judge to redact it from the pre-sentence investigation report.

Below is a quick and dirty outline of the steps that I cover in this podcast for determining the sentence of a defendant who has been convicted of a tax crime in federal court. If you would like the full outline, please email me or send me a message on Linked In. Enjoy!

Step 1: Determine the base offense level by reference to the tax loss number

Step 2: Adjust the offense level in light of specific offense characteristics

Step 3: Calculating the sentence

Step 4: Fines

Step 5: Court will determine whether restitution should be imposed

Step 6: Departures

This is a webinar that I presented in partnership with CPA Academy. I'm honored to lecture for such a fine CPE provider. For those who are interested in obtaining CPE credit, click here to sign up.

Below is more information about the program:

Course Description

In one of the climactic scenes from 1954’s On The Waterfront, Crime Commission prosecutors had to make their corruption case against union boss Johnny Friendly (a/k/a Michael Skelly) by convincing a reticent yet pure-hearted Terry Malloy to come forward and tell what he knew about corruption in the International Longshoremen’s Association, beginning with the murder of Joey Doyle, because an underling insisted that “we were robbed last night and can’t find no books.”

If that same case came up in 21st Century tax court, Eva Marie Saint and Karl Malden could’ve stayed at home rather than serving as Marlon Brando’s cheering section, because government prosecutors could reconstruct the ILA’s income, based on the records retention requirements in Section 6500 et seq.

In other words, the conventional wisdom that only divine beings can create something out of nothing does not apply in income tax evasion cases. Is it enough for the government to pull a metaphorical rabbit out of a metaphorical hat, or are there some additional requirements?

Learning Objectives:

Elements of Tax Evasion

Define Substantial Tax Deficiency

Methods of Proof

This is the first of several parts. There is a lot of information to discuss that it might feel like drinking water out of a fire hydrant.

Sentencing issues are arguably the most important part of a federal criminal tax case. Because the likelihood of conviction is so high, the best that defense counsel can do for his client is minimize the sentence.

The law surrounding federal criminal sentencing is in a stage of upheaval. The Booker case fundamentally altered the legal landscape. This is an unsettled area.

This podcast will cover five topics:

The U.S. sentencing guidelines – generally

Sentencing procedures

Booker and its immediate aftermath

Specific applications of the sentencing guidelines to criminal tax prosecutions.

Recent developments

Enjoy the show!

This presentation breaks down the FBAR, FinCEN's most common international reporting form.