United States v. Sergio Gardea - 05/10/2018

Tax preparer found not guilty on all 30 counts of preparing false tax returns following a 2 week jury trial today. Mr Gardea was represented by Miami criminal tax lawyer David M. Garvin.

Federal Tax Crimes & Economic Crimes Defense


Types of Investigations for Income Tax Violations. IRS Criminal Defense Lawyers.

Criminal Tax Defense & Economic Crimes Services in Miami

Types of Investigations for Income Tax Violations.

There are two types of criminal income tax investigations. One type is an IRS administrative investigation. The investigation is conducted by special agents of the criminal investigation division of the IRS. The agents confer with IRS civil lawyers from the district or regional counsel's office regarding legal issues.  At the conclusion of the administrative investigation, the special agents prepare a report that summarizes the results of the investigation. If the evidence establishes one or more violations of the tax laws, the agents may request leave to seek an indictment of the taxpayer. At that time, the Department of Justice Tax Division will review the report and determine if it is consistent with the national policy of the government to authorize the prosecution of the case. The review will be affected by the evidence.

The second type of investigation is an investigation conducted by a grand jury.  The grand jury is convened and an Assistant United States Attorney will assist the grand jury. Internal Revenue Service Criminal Investigation Division special agents will also assist the grand jury. The Assistant United States Attorney will prepare an indictment for the grand jury to approve and execute that alleges the tax violations based upon the evidence presented to the grand jury during its investigation.  A taxpayer should avoid appearing before a grand jury to testify on his or her case.

Meeting with the Department of Justice and Common Mistakes. 

Counsel for the taxpayer may request a meeting with the Department of Justice lawyer assigned to the case before authority to indict has been granted. The Department of Justice lawyer will not disclose to taxpayer's counsel much other than the violation code sections, the amount of tax loss, and the tax years in issue. Counsel for the taxpayer will be asked what evidence does the taxpayer want to present to support the taxpayer's position that the government should not proceed to prosecute the case.  This is a very dangerous point in the case. If taxpayer's counsel reveals information pointing out perceived weaknesses in the government's case but, is unsuccessful in convincing the Department of Justice lawyer to stop the prosecution of the case, the government will be better prepared for trial. This will make it even more difficult for the taxpayer to prevail at trial. Inexperienced tax lawyers often make mistakes at these meetings that adversely affect the taxpayer's chance to win. Often these errors go unrecognized. Further, a taxpayer should avoid discussing an matter with an agent or lawyer of the government during the investigation or trial of a criminal tax case. Another common mistake made by inexperienced lawyers and accountants during a criminal tax investigation is the filing of amended tax returns. These returns are often not permitted to be introduced into evidence at trial to proof the taxpayer innocent. However, they are often used by the IRS to prove that the tax returns initially filed were false and that a substantial amount of tax was due and owing.  This is an essential element of an income tax evasion case under Section 7201 of the Code. The damage that can occur from filing amended tax returns during a criminal investigation can be devastating to the taxpayer's chances to prevail at trial. In summary, inexperienced lawyers and accountants can inadvertently damage the taxpayer's opportunity to prevail at trial in criminal tax cases.      

The Practice Areas of the Firm.

The firm concentrates its practice on criminal tax and economic crimes defense. These practice areas are listed below:

Offshore Voluntary Disclosure Program

If you are a U.S. citizen or green card holder living abroad or a foreign national residing in the U.S. with foreign income, foreign bank accounts, or financial assets, you may be required to disclose these assets on a U.S. tax return, a U.S. Treasury information Form TD F 90-22.1 (Report of Foreign Bank and Financial Accounts (FBAR), and/or other U.S. informational returns. Failure to properly disclose foreign income, foreign financial accounts, or foreign assets can result in significant civil and criminal penalties. The U.S. government has the power to enforce taxation and reporting requirements far beyond the borders of the United States. The U.S. government and its international partners are aggressively pursuing those who hide income or assets outside the U.S. to evade paying U.S. taxes. However, the government has created a program that affords taxpayers under certain circumstances to avoid criminal prosecution and to pay a reduced penalty on funds that were not properly reported in the past which are located abroad.  These cases often involve income tax issues together with Foreign Bank Account Reporting rules.  If you believe that you may have issues concerning foreign bank accounts and/or assets it is recommended that you seek the advice of a qualified tax lawyer.

FBAR The Foreign Bank Account Report (formally form TD F 90-22.1)

The Foreign Bank Account Report (formally form TD F 90-22.1) has to be filed electronically as FinCEN Form 114 by June 30th each year. Every United States person* who has one or more foreign bank accounts which at any point during the year reached an aggregate balance of over $10,000 is obliged to file this form with the US Treasury Department, listing all foreign accounts.

* The IRS has clarified that for FBAR filings due 30 June 2009 and subsequent years, the term “United States person” means 
(1) a citizen or resident of the United States, 
(2) a domestic partnership, 
(3) a domestic corporation, or 
(4) a domestic estate or trust.” This was a temporary retreat from revised instructions previously issued requiring FBAR filings by any person “in and doing business in the United States,” which casts a very wide net.

To learn more about FBAR and how it might impact you, you can consult the IRS website or contact our offices for more information at (305) 371-8101.  

Note that as of July 1, 2013 all FBAR's must be filed electronically.

FATCA

FATCA was enacted in 2010 by Congress to target non-compliance by U.S. taxpayers using foreign accounts. FATCA requires foreign financial institutions (FFIs) to report to the IRS information about financial accounts held by U.S. taxpayers, or by foreign entities in which U.S. taxpayers hold a substantial ownership interest. Here you will find links to many documents related to FATCA and its implementation. 

Civil Income Tax Litigation

    •  Tax Audits
    •  Tax Appeals
    •  Tax Protests
    •  Tax Court Petitions
    •  Tax Court Trials
    •  Tax Controversies

The Internal Revenue Service has the authority to audit your financial affairs to determine whether the income and deductions reflected on you annual tax return are accurate.  When the audit is completed the IRS revenue agent prepares a report. The report reflects the adjustments that the IRS asserts to make to the tax return.  The adjustments often result in the taxpayer owing more taxes, interest and penalties. The taxpayer may file a protest to the report and request a conference before an IRS Appeals Officer.

The Appeals Officer will review the positions taken in the report and will consider the arguments made on behalf of the taxpayer against the proposed adjustments. The Appeals Officer is authorized to negotiate a settlement based upon the anticipated "Hazards of Litigation". In essence, this translates to the probability of the IRS prevail at trial on each issue before the United States Tax Court. If the taxpayer's representative and the Appeals Officer are unable to reach a settlement, the IRS will issue a statutory notice of deficiency.

The taxpayer must file a proper petition in the United States Tax Court within 90 days of the date of the statutory notice of deficiency objecting to the findings of the IRS and the proposed changes. The general counsel for the IRS will represent the IRS at trial. Tax Court cases are decided by the Judge. Tax Court trials are NOT jury trials. If the taxpayer wants a jury trial, the taxpayer must pay the asserted tax and sue for a refund. The lawsuit is filed in the U.S. District Court. Trials before the U.S. District Court for tax refunds are jury trials.   

If you have any serious civil tax issue, contact David M. Garvin at 305-371-8101.

Appeals

  •   Federal Criminal Appeals

All rights reserved the-tax-specialist.com 2017