State of the Offshore Voluntary Disclosure Initiative

Readers interested in the state of the IRS's Offshore Voluntary Disclosure Initiative (OVDI) may be interested in the following publication: Mark E. Matthews and Scott D. Michel, IRS’s Voluntary Disclosure Program for Offshore Accounts: A Critical Assessment After One Year, 181 DTR J-1 (9/21/10).   The article may be reviewed or downloaded here. The authors, both prominent practitioners in this area of the law, provide a good summary of the history of voluntary disclosure and the implementation of the current OVDI, with emphasis on the program through the first stage cutoff for taxpayers entering the program by 10/15/09.

Yet Another UBS Client Bites the Dust

On September 21, 2010, Jules Robbins, an 84 year old retired watch distributor, was sentenced to one year probation for hiding his Swiss accounts that held, at their peak, almost $42MM. From the USAO SDNY Press Release:

In 2000, ROBBINS used the services of a U.S.-educated Swiss attorney to set up a sham Hong Kong corporation which was listed as the holder of his account and to serve as the nominal head of the corporation. In fact, UBS internal documents specified that ROBBINS wanted to be "100% in charge" of investment decisions concerning his UBS accounts. ROBBINS also took numerous steps to conceal his interest in these accounts from the IRS, including having his Swiss attorney receive all of the correspondence relating to the account at his law firm in Switzerland. As of December 31, 2007, ROBBINS' UBS accounts collectively contained almost $42 million.

ROBBINS, 84, of Jericho, New York, pled guilty on April 15, 2010, to five counts of subscribing to false federal income tax returns. As part of his plea agreement with the Government, ROBBINS paid a civil FBAR penalty of $20,833,345, an amount equal to 50 percent of the highest value of his UBS accounts as of December 31 for the years in which he failed to file FBARs.

According to news reports, Robbins' attorney argued in support of a light sentence that Robbins, the octogenarian, was in fragile health and the FBAR penalty is 80% of his net worth (meaning that his remaining 20% would be about $5MM. From the Bloomberg report, Robbins apologized and "asked the judge for mercy, breaking down several times as he told Holwell of the 'shame, aggravation and sleepless nights during the past many months.'"

The Triple Whammy from Breach of Trust Illegal Income -- Ouch, That Hurts

In United States v. Welch, 2010 U.S. App. LEXIS 19107 (5th Cir. 2010) (unpublished), the Court affirmed a relatively rare upward variance from the guidelines sentencing range in a tax case. The background (from an update in my book) is:

The Guidelines provide an upward adjustment if the defendant abused a position of public or private trust “in a manner that significantly facilitated the commission or concealment of the offense.” §3B1.3. A tax crime involving only the breach of the duty to the Government to report and/or pay tax does not invoke this upward adjustment, but if the tax crime involves or arises from some other conduct that does breach a position of public or private trust, then this upward adjustment may apply. For example, if the tax crime is failure to report embezzled income, this adjustment may apply as well as the two level adjustment §2T1.1(b)(1) for illegal income and then, even worse, a sentencing court may consider the nontax breach of trust conduct as a factor warranting an upward variance.

In Welch, the defendant was charged under Section 7206(1) (tax perjury) for failing to report embezzlement income of $622,000. In computing the Guidelines range, the sentencing court included an illegal source adjustment (S.G. §2T1.1(b)(1)) and a breach of trust adjustment under §3B1.3. The court then determined to vary upward from the thus enhanced Guidelines range because the defendant's embezzlement had not been prosecuted and thus, in the court's view, the Guidelines calculations even as thus enhanced did not adequately reflect the seriousness of the conduct.

The Fifth Circuit sustained as a proper application of the sentencing court's authority under Booker.  The Court said succinctly:

The district court was entitled to base its variance upon the embezzlement, even if that offense was already accounted for in the Guidelines calculation. United States v. Brantley, 537 F.3d 347, 350 (5th Cir. 2008); United States v. Williams, 517 F.3d 801, 810-11 (5th Cir. 2008) (holding that a district court may rely upon factors already incorporated by the Guidelines to support a non-Guidelines sentence).

Picky, Picky - Tax Perjury is Not Tax Evasion / Fraud

I write just to note that the Third Circuit made a mistake that I hope my students do not make. In United States v. Riley, ___ F.3d ___ (3d Cir. 2010), 2010 U.S. App. LEXIS 19310 (3d Cir. 2010) the defendant was convicted of three counts of tax perjury under Section 7206(1). It is elementary that tax perjury is not tax evasion (or tax fraud as it is sometimes called), which requires a key additional element of tax due and owing. In its opinion, the Third Circuit refers to the tax perjury counts of conviction as "tax fraud" and "tax evasion."

The error does not appear to have affected the opinion. The court reversed on the honest services conviction based on Skilling, but otherwise sustained the convictions.

Another UBS Client Bites the Dust - One Year Sentence

Another UBS client was sentenced today in New York. According to this blog posting by Janet Novack of Forbes' Taxing Matters, Frederico Hernandez was sentenced to a year in prison. After I get more details, I may do another posting if there is something material to add or correct. In the meantime, I recommend you to Ms. Novack's blog post which is quite good for such quick reporting.

I do make the following points:

1. The report is that Mr. Hernandez got a one-year sentence which is a more defendant friendly sentence because the good time credit (about 15%, although the calculation can be tricky) is not available for sentences of less than one year and one day. 18 USC 3624(b). The good time credit for a sentence of one year and one day is 47 days, making the defendant with good time serve only 319 days. A defendant with a one year sentence must 365 days with no good time credit.  What a difference a day makes..  The Judge (Denny Chin) surely knew of this difference and, apparently was not quite willing to go there.

2. Hernandez and the Government agreed in the plea that the tax loss was $84,423. However, the Government apparently asserted at sentencing that the real tax loss was in excess of $500,000. I have not seen the plea agreement, so there is a nuance somewhere that I am missing on this. In any event, the Probation Office and the Court are not locked into the tax loss that the Government and the defendant agree upon in the plea agreement (dare I say conspire to smoke past the court; the devil made me say that). The higher tax loss would, of course drive up the base offense level and, as a result, the Guidelines sentencing range after all adjustments.  And, of course, with a higher Guidelines sentencing range, a sentencing judge will have to vary more than if the sentencing range were lower.

3. According to the article, the plea was for tax perjury (Section 7206(1)) for the years 2004-2008, during which period he reported $503,682 of AGI, whereas during the period his real AGI was $1.9 million. And, as alleged by the government, he had the same pattern of conduct in the years 2001 through 2003. With the higher amounts, the Guidelines range would have been 30 to 37 months. Question for students: assuming that the pattern of the conduct was the same in all years, what would have been the effect had he pleaded to a single count?

4. Even the year is the longest UBS depositor sentence to date. Was this guy worse than the earlier ones or did he just get in line later than they did? What does that portend for later comers?

5. The Government urged the Court to sentence to 18 to 24 months to send a message. The court obviously wanted to send a different message -- first to the defendant before the court and, perhaps only derivatively, to the universe of tax cheats and wannabe tax cheats.

Ms. Novack also has a prior blog on how courts are lenient in tax crimes and certain other federal crimes relative to the typical federal crimes prosecuted in the courts. That blog is here.

Addendum:  9/17 @ 5:40pm:  Readers might want to take a look at this, at least tangentially related, WSJ Law Blog titled Planning A Prison Stay? The Options Can Be Overwhelming.

Addendum #2 9/18 @ 9:15am:  I have corrected the federal good time credit calculation which was in error in an earlier version of the blog.  There has been some confusion over the years about precisely how it is calculated.  But, the BOP controls the process and calculates it to allow 47 days GTC for a 1 year and 1 day sentence.  For a discussion, see here.

Addendum #3 9/20/10 @ 10:15am.  See Bloomberg article here and USAO SDNY release here.

Sixth Circuit on Klein Conspiracy and Tax Evasion

On September 15, 2010, the Sixth Circuit decide United States v. Damra, 621 F.3d 474 (6th Cir. 2010). The decision is long (51 pages) and addresses a number of issues. I deal here only with three of them that I think are in the mainstream for readers of this blog.

1. Klein Conspiracy - Is Willfulness An Element of the Crime?

Damra was convicted of a Klein conspiracy. Most readers will know that the federal conspiracy statute, 18 USC 371, defines two types of conspiracies -- an offense conspiracy and a conspiracy to defraud, known in the tax arena as a Klein conspiracy. If the offense underlying the offense conspiracy has a willfulness element, that element is imported as an element of the offense conspiracy. Specifically, a conspiracy to commit a tax crime having a willfulness element must meet the Cheek spin of intentional violation of a known legal duty. But, the Klein conspiracy has no reference point to import a willfulness element. So the question is what is the mens rea required in a Klein conspiracy?

Damra complained on appeal that the trial court did not instruct the jury that the Government must have proved that the defendant acted "willfully." Bottom line, the Sixth Circuit held that the instructions as given sufficiently conveyed the concept to the jury that the trial court did not commit reversible error. In the process of reaching that bottom line, the Sixth Circuit reiterated a prior holding willfulness is a required element of a Klein conspiracy, quoting an earlier case (United States v. Beverly, 369 F.3d 516, 532 (6th Cir. 2004) (citations omitted)) as follows (p. 498).

To establish a conspiracy, in violation of 18 U.S.C. § 371, the government must prove beyond a reasonable doubt that there was "an agreement between two or more persons to act together in committing an offense, and an overt act in furtherance of the conspiracy." This requirement has been broken down into a four-part test, which requires the government to prove that: "1) the conspiracy described in the indictment "was wilfully [sic] formed, and was existing at or about the time alleged; 2) the accused willfully [sic] became a member of the conspiracy; 3) one of the conspirators thereafter knowingly committed at least one overt act charged in the indictment at or about the time and place alleged; and 4) that overt act was knowingly done in furtherance of some object or purpose of the conspiracy as charged."

Notwithstanding that holding, the Sixth Circuit's pattern jury instructions defined the crime in terms of "knowingly and voluntarily" participating in the conspiracy rather than willfully doing so. In effect, Court held that these terms are sufficient to convey the willfulness concept, concluding (p. 500):

As the district court's instructions tracked our pattern instructions, as we have repeatedly approved of the "knowingly and voluntarily" formulation of the second element of conspiracy to defraud the government under 18 U.S.C. § 371, and as "willful" is in fact defined in part as "voluntary," we find that the district court did not omit the willfulness element of § 371 conspiracy when it instructed the jury, and so did not commit plain error in issuing its instructions as to Count 1.

JAT Comment: I think the Court did not crisply address or resolve the issue. The issue is whether, if indeed willfulness, at least in the Cheek sense, is an element of the Klein conspiracy, the words "intentionally and voluntarily" cover the same ground adequately to inform the jury. I don't believe that the Government believes that it does. I address that notion in my article, See John A. Townsend, Is Making the IRS's Job Harder Enough?, 9 Hous. & Bus. Tax L.J. 260 (2009). As I note in that article, the Government has taken the position that the Klein conspiracy is free of the Cheek willfulness spin that the defendant intend to violate a known legal duty but simply has to intend to join the conspiracy to defraud (defraud encompassing acts that are not necessarily illegal). And, if you parse the language of Beverly quoted above, the use of the word willfully does not seem to address the Cheek willfulness requirement in the sense of an intentional violation of a known legal duty. Indeed, in a later footnote (footnote 7), the Sixth Circuit says: ""The intent element of § 371 does not require the government to prove that the conspirators were aware of the criminality of their objective . . . ." United States v. Khalife, 106 F.3d 1300, 1303 (6th Cir. 1997) (quoting United States v. Collins, 78 F.3d 1021, 1038 (6th Cir. 1996))."

2. Tax Evasion - Separate Good Faith Instruction?

The defendant argued that the trial court erred in failing to give a good faith instruction on the tax evasion charge. Bottom line, the Court said that the standard Cheek willfulness instructions adequately covered the ground. The Court reasoned (p. 502):

As the Supreme Court has held, where a trial judge "adequately instructed the jury on willfulness" in a case concerning whether the defendants had filed fraudulent tax returns,"[a]n additional instruction on good faith was unnecessary." United States v. Pomponio, 429 U.S. 10, 13 (1976). Willfulness, the Court explained, "in this context simply means a voluntary, intentional violation of a known legal duty." Id. The clear implication of Pomponio is that where a district court presiding over a criminal tax-evasion case issues an instruction defining willfulness in this fashion, the good-faith requirement is effectively bundled into the willfulness instruction. Here, the district court instructed the jury that in order to sustain its burden of proof as to Count 2, "the government must prove beyond a reasonable doubt that defendant acted willfully. To act willfully means to act voluntarily and deliberately, and intending to violate a known legal duty." (Trial Tr. at 816-17.) By matching the language approved of in Pomponio, the district court effectively and correctly instructed the jury as to this element. As we have explicitly held, moreover, a jury's conclusion that a defendant acted "willfully" in this manner "would necessarily negate any possibility" that the defendant acted in good faith. United States v. Tarwater, 308 F.3d 494, 510 (6th Cir. 2002); see also United States v. Ervasti, 201 F.3d 1029, 1041 (8th Cir. 2000) (holding that the district court did not abuse its discretion in refusing the defendant's request for a good-faith instruction where the court instructed the jury that "[a]n act is done willfully if it is done voluntarily and intentionally with the purpose of violating a known legal duty.").

3. Klein Conspiracy or Offense Conspiracy?

The defendant raised the Minarik defense. United States v. Minarik, 875 F.2d 1186 (6th Cir. 1989). The gravamen of the defense is that the Government cannot dress up what is in reality a tax offense conspiracy as a Klein conspiracy. I am sure all of us know that given the breadth of the defraud object for the Klein conspiracy, any tax offense conspiracy is also a Klein conspiracy. (As noted above, the Government imagines a lesser burden of proof for the Klein conspiracy, so it may be sorely tempted in weaker cases to charge a Klein conspiracy rather than an offense conspiracy.) The Sixth Circuit continued its retreat from Minarik, thus essentially limiting it to the Minarik facts.

As we have concluded in other cases in which defendants have made this argument, "[b]ecause the unique circumstances found in Minarik do not apply here, we decline to depart from the general rule that the defraud and offense clauses are not mutually exclusive." See United States v. Tipton, 269 F. App'x 551, 556 (6th Cir. 2008). Accordingly, we find that Damra could appropriately be charged under § 371's "defraud" clause, and that therefore Count 1 does not fail to allege an offense pursuant to 18 U.S.C. § 317.

As a result, the Government has broad latitude as to how to charge a tax conspiracy. Indeed, the Government will often charge both the offense conspiracy and Klein conspiracy in a single count -- the ubiquitous Count One -- and urge that the failure to prove the offense conspiracy can still permit conviction of the Klein conspiracy.

Sentencing Tax Loss, Unfiled Returns and Deductions

I write today about two recent cases, one which held that, for civil tax purposes, a taxpayer who fails to file is not entitled to claim his or her itemized deductions in a civil tax proceeding and the other applying the same rule in a criminal case at sentencing in calculating the tax loss. See Jahn v. Commissioner, 2010 U.S. App. LEXIS 17525 (3d Cir. 2010) (unpublished opinion); and United States v. Kellar, 2010 U.S. App. LEXIS 19129 (5th Cir. 2010) (unpublished), respectively. I made some revisions to my book and include the following revised section on calculating the tax loss in an failure to file case (footnotes omitted).

Consider the application of this rule [permitting estimates of the tax loss for the tax loss calculation] where the tax offense is failure to file rather a fraudulent return omitting income or misstating claimed deductions or credits. If the defendant originally filed a fraudulent return without claiming otherwise available deductions or credits, I suppose that some sense of fairness could support denying the deductions or credits since the tax loss the defendant intended was not affected by the unclaimed deductions. But, if the defendant filed no return, is he or she to be further punished in the sentencing phase by rigid estimates simply because he or she did not claim the deductions? I can certainly make a distinction between the two circumstances.

In a recent case [United States v. Delfino, 510 F.3d 468 (4th Cir. 2007), cert. denied ___ U.S. ___, 129 S.Ct. 41 (2008)], the Fourth Circuit held that a defendant can be denied deductions after failing to file. It is important to note that the appeal involved a conviction for tax evasion, not for failure to file. As I noted earlier in this text, tax evasion convictions where the taxpayer has failed to file are rare. The Court reasoned:

• The Court adopted the reasoning in Chavin [United Stats v. Chavin, 316 F.3d 666, 677-679 (7th Cir. 2002)] that the tax loss is the intended tax loss rather than the actual tax loss. This appears to be semantics in a failure to file case – although this was an evasion conviction the taxpayer had never quantified under oath the deductions to which he was entitled. In other words, there is a point of reference for making the calculation as to “intent” with a filed return that point of reference does not exist for a return that is not filed.

• In the final analysis, the Court seems to have simply punted on the issue rather than require sentencing courts to compute tax liabilities with more detail. The Court thus concluded its discussion.

The Delfinos chose not to file their income tax returns. They also chose not to cooperate with the initial IRS audit, at which time they could have claimed deductions to which they were entitled. By doing so, they forfeited the opportunity to claim these deductions. Were the district court now to attempt to reconstruct the Delfinos' income tax returns post hoc, it would be forced to speculate as to what deductions they would have claimed and what deductions would have been allowed. This would place the court in a position of considering the many “hypothetical ways” that the Delfinos could have completed their tax returns. Chavin, 316 F.3d at 678. The law simply does not require the district court to engage in this speculation, nor does it entitle the Delfinos to the benefit of deductions they might have claimed now that they stand convicted of tax evasion.

Making judgment calls about a more accurate computation of taxes is not dissimilar to what sentencing courts do all the time with financial crimes that involved a great deal more uncertainty than tax computations. Taxes are not that complex – indeed, even with their complexity, Congress still imposes upon the ordinary citizen the responsibility of filling them out with such assistance as may be needed. The sentencing process is more than vigorous enough to assist in generating a good tax number for sentencing purposes. Federal judges are up to this task.

What troubles me most about this rhetoric is that it seems to offer license to sentencing courts for sloppy thinking in this key component of the sentencing decision. And, it leaves open the door for sentencing to turn upon taxes that the taxpayer does not owe.

Perhaps a more solid ground to deny some deductions – specifically itemized deductions when the taxpayer fails to file a return is the Code requirement that itemized deductions be claimed on the return. If there is no return, then technically the taxpayer – the defendant in the sentencing proceeding – is not entitled to claim itemized deductions that he or she almost certainly would have elected had he or she filed a return. Section 83(e); Jahn applies this in a civil case. All other things being equal, one might surmise that this rule would apply in a criminal failure to file case in the tax loss calculation, denying the defendant the benefit of the itemized deductions which could have substantially lowered his tax liability and resulting guideline range. Where this is a potential problem (it won’t be if the itemized deductions are not sufficiently large to reduce the base offense level), a defendant might consider filing the return immediately upon the conviction. One problem is that the filing of the return might then be used as an admission in the event the case is subsequently remanded for another trial. Moreover, since the return must be true complete and accurate, the defendant may not want to file if he or she is aware of facts that produce tax liabilities that are in excess of the tax loss determined by the Government and submitted to the Probation Officer and the Court. Think it through before you file.

Finally, one additional strategy to get the Probation Officer or the Court to consider itemized deductions in a failure to file situation is to stress that the sentencing tax loss is in the “intended” tax loss. Certainly, it is unreasonable to believe that a taxpayer cheating by failing to file his or her tax returns intended to cheat on an amount that would not have been due had he or she filed his or her tax return and claimed, lawfully, the itemized deductions. Worth a try.

Third Circuit Decision in Staudtmauer - Willful Blindness (Conscious Avoidance)

The Third Circuit issued a very interesting opinion yesterday in a tax crimes case. The opinion is United States v. Stadtmauer, 620 F.3d 238 (3rd Cir. 2010). The opinion is 88 pages long and covers several important issues. I plan to discuss the issues in separate blogs, but first I start the Court's introduction to the opinion:

Following a two-month jury trial in the District Court for the District of New Jersey, Richard Stadtmauer was convicted of one count of conspiracy to defraud the United States (in violation of 18 U.S.C. § 371), and nine counts of willfully aiding in the filing of materially false or fraudulent tax returns (in violation of 26 U.S.C. § 7206(2)). On appeal, Stadtmauer raises many challenges to these convictions. We deal principally with the issue Stadtmauer raises last: whether the District Court erred in giving a willful blindness instruction in this case, including whether the Supreme Court's decision in Cheek v. United States, 498 U.S. 192 (1991), forecloses the possibility that willful blindness may satisfy the legal knowledge component of the "willfulness" element of criminal tax offenses. We join our sister circuit courts in concluding that Cheek does not prohibit a willful blindness instruction that applies to a defendant's knowledge of relevant tax law. We reject also Stadtmauer's other claims of error, and thus affirm.

Read more »

Government Fails to Prove Willfulness in FBAR Civil Case

In Williams v. United States (EDVA Civil Action No. 1:09-cv-437, decision dated 9/1/10), the court declined to find willfulness.

The opinion is relatively short, so I won't rehash the opinion. Some significant facts from the case are:

1. "Between 1993 and 2000 Williams deposited more than $7,000,000 in assets in the accounts, earning more than $800,000 in income over that period."

2. During the year in issue (2000, for which the FBAR was due 6/30/01), the Swiss were focusing on the accounts perhaps at the request of the U.S., the Swiss interviewed Williams about the accounts, the Swiss froze the accounts at the request of the U.S. and the U.S. was aware of the accounts (it is not stated whether that request was a tax driven request or some other law enforcement imperative request.) (The timing of some of these events were disputed by the Government, but the district judge would have none of that.)

3. On his 2000 1040, Williams failed to include the income from the accounts and, on Schedule B, failed to check the FBAR question.

4. Williams failed to file the FBAR by June 30, 2001.

5. Williams' lawyers and accountants had advised him of the requirement to file the FBAR.

6. The Government had not proved that Williams willfully failed to file the 2000 FBAR.

7. "On October 15, 2002, Williams disclosed the accounts by filing his income tax return for the tax year 2001."

8. On February 2003, Williams disclosed the accounts pursuant to an earlier version of the offshore voluntary account program (the OVCI program).

9. "On June 12, 2003, Williams pleaded guilty to one count of conspiracy to defraud the United States and to one count of criminal tax evasion in connection with funds held in the Swiss bank accounts during the years 1993 through 2000." (Apparently, Williams' attempt at voluntary disclosure did not work, presumably because the disclosure was not timely.)

10. "On January 18, 2007, Williams filed the TDF 90-22.1 form for all years going back to 1993, including tax year 2000."

The key legal holdings are:

1. The legal review standard is de novo, in which the Government must prove willfulness -- in this context the intent to violate a known legal duty.

2. The maximum penalty for the willful violation then was $100,000.

3. The court found on the facts presented that the Government had not proved that the defendant knew the legal duty in question. The Court reasoned:

In this case, the Government has failed to prove a "willful" violation. The Court finds that the Government's case does not adequately account for the difference between failing and willfully failing to disclose an interest in a foreign bank account. n5  Further, the Government fails to differentiate tax evasion from failing to check the box admitting the existence of a foreign bank account.
n5. It is worth noting that Congress has since amended 31 U.S.C. § 5321 to allow the government to assess a civil penalty for FBAR violations regardless of whether the violation is willful. See 31 U.S.C. § 5321(a)(5), as amended by P.L. 108-357. Further, the statute now provides a "reasonable cause" exception. See 31 U.S.C. § 5321(a)(5)(B)(ii). While the issue of Williams' liability under the statute as amended is not before the Court, the Court notes that Congress found it necessary to expand the coverage of § 5321 to address a class of conduct falling short of the "willful" standard solely accounted for under the old statute. Clearly, simply failing to file a Form TDF 90.22.1 was insufficient to subject an individual to liability for a civil penalty under the old statute.

4. The court was not persuaded, on these facts, that Williams' no answer to the foreign account question on his 2000 1040 Schedule B gave his the requirement knowledge of the legal duty.

5. Moreover, since the accounts were surely known by all, including the U.S. by June 30, 2001, it would make no sense for Williams not to disclose them by filing the FBAR.

6. Williams was not estopped by his evasion guilty plea.

The Government argues that Williams' guilty plea should estop him from arguing that he did not willfully violate § 5314 for the tax year 2000. However, the evidence introduced at trial established that the scope of the facts established by Williams' 2003 guilty plea are not as broad as the Government suggests, and there remains a factual incongruence between those facts necessary to his guilty plea to tax evasion and those establishing a willful violation of § 5314. That Williams intentionally failed to report income in an effort to evade income taxes is a separate matter from whether Williams specifically failed to comply with disclosure requirements contained in § 5314 applicable to the ALQI accounts for the year 2000. As Williams put it in his testimony at trial, "I was prosecuted for failing to disclose income. To the best of my knowledge I wasn't prosecuted for failing to check that box." Tr. at 34.

I think the case illustrates the difficulty the Government will meet in establishing willfulness for the truly draconian FBAR penalty (in its present iteration).  Perhaps this will encourage at least some taxpayers in the current voluntary disclosure initiative to opt out and be subject to the normal FBAR penalty regime.  Assuming that the Government cannot meet the high standard (as illustrated by this case), the penalty costs could be a whole lot less than the program requires.

Court Addresses Attorney-Client Privilege in Suit Against Tax Shelter Promoters

In Green v. Beer, 2010 U.S. Dist. LEXIS 87484 (SDNY 8/24/10) (involving a taxpayer suit against tax shelter promoters, Judge Kimba Wood addressed objections a magistrate's determination of discovery issues involving the attorney-client privilege. The issues resolved by Judge Wood are.

1. Waiver by Disclosure to Third Parties.

The general rule is that disclosure to third parties waives the privilege. That took care of the plaintiff's disclosures to financial advisers that the defendants wanted to see (I suppose, to address whether plaintiffs really relied on defendants). However, one set of disclosures fit an exception -- a disclosure to an agent assisting in the flow of communications between the attorney and the client. The circumstance was:

In contrast, Daniel Green, the son of the Green Plaintiffs, received email communications from counsel, which he then provided to his parents. He explained in his affidavit that his technical assistance was necessary for his parents to timely receive the email communications from counsel:

My parents are not proficient in the use [of] electronic mail and, due to the time-sensitive nature of these communications, it was necessary for these communications to be delivered to my email address to ensure a timely receipt. My parents regularly rely on me to send and receive emails for them.

Important to the Court's resolution of the issue was the New York Statute on the issue which provides (Section 4548 of the New York Civil Practice Law and Rules):

No communication . . . shall lose its privileged character for the sole reason that it is communicated by electronic means or because persons necessary for the delivery or facilitation of such electronic communication may have access to the content of the communication.

Perhaps some readers have focused on this type of issue in a federal proceeding, and most particularly a tax case. Would the New York statutory wrinkle on the attorney client privilege be relevant? Federal issue cases in federal courts (specifically federal tax cases) look to the general common law attorney client privilege without local state embellishments. See FRE 501; see also Rule 502 (providing limitations on when disclosure constitutes waiver of the privilege). Ultimately, Judge Wood held that the privilege had not been waived because, as a matter of fact under the circumstances, the defendant was an important agent to assist in communications, citing inter alia, Kovel (United States v. Kovel, 296 F.2d 918, 921 (2d Cir. 1961)) and Adlman (United States v. Adlman, 68 F.3d. 1495, 1499 (2d Cir. 1995))

2.  Waiver By Asserting Reliance on Defendants.

a.  At the Inception.  Even as to communications made to the attorney otherwise within the scope of the privilege, courts have held that a party may waive the privilege by affirmatively claiming reliance on the lawyer in defense of a claim against that party-client. This is often seen in tax criminal and civil tax cases where, as a defense to a criminal or civil penalty, the client as a party asserts that he or she relied upon his or her lawyer and therefore should not be subject to the penalty. In the tax cases of which I am aware, this claim operates as a waiver of the attorney-client privilege. In Green, however, the plaintiffs were not affirmatively alleging reliance on their lawyers present at the creation. Rather, they were asserting that they relied upon the defendants (the tax shelter promoters/enablers). I suppose that is an implied representation that they were not relying upon their lawyers.  The defendants wanted to test the plaintiffs claim by seeing what plaintiffs told their lawyers, what advice they received and whether, therefore, they really relied upon the defendants as they claim. The magistrate judge held that the plaintiffs had not waived the privilege, and the district court sustained the magistrate's holding. The district court did acknowledge that there are conflicting holdings within the district, but "To the extent that there is a split in the case law, however, the magistrate judge's order cannot be considered clearly erroneous or contrary to law." (see fn. 3.) (I just wonder whether Is this the right context to be applying the clearly erroneous or contrary to law standard.)

b. In Settling with the IRS.  The magistrate found any attorney-client communications related to the settlement with the IRS irrelevant to the issues presented.  In a short holding, the district court affirmed.