Tax Problem Attorney Blog

Treating Employees As Independent Contractors Results in Criminal Tax Conviction

December 3, 2012 | by Dennis N. Brager

In a criminal tax case last year the United States Court of Appeals for the Eighth Circuit upheld the conviction of a man for willful failure to pay the employment taxes of his healthcare staffing business. U.S. v. McClain (8th Cir. 2011). In United States v. Francis Leroy McLain, No. 0:08-cr-00010 (D. Minn. Jul. 20, 2009) the United States District Court for the District of Minnesota determined that Francis McLain knew he should have classified the workers for his temporary nursing staffing agency as employees but willfully chose not to.

How did McLain’s payroll tax problems morph into criminal tax problems? First, he never filed federal payroll tax returns (Form 941) for the periods from the fourth quarter of 2002 through the fourth quarter of 2005 and only made one payment in December 2002 in the approximate amount of $4,200 for employment taxes although the total amount due was approximately $345,000. McClain’s defense was that the nurses were in fact independent contractors and not employees, and even if they weren’t he had a good faith belief that the workers were employees.

The courts were not impressed with McClain’s arguments since he had a history of misclassifying his temporary nursing staff as independent contractors. In a previous civil tax case involving a predecessor company the IRS argued that McClain willfully misclassified his workers and failed to remit the payroll taxes to the IRS. That lawsuit was eventually settled and the IRS obtained a judgment for the unpaid employment taxes, penalties and interest. As a further part of that settlement McLain agreed that “with respect to any other business similar to the … entities that he might own, operate, or control in the future, he would treat as employees for tax purposes all workers who performed functions or duties that were the same or similar as the functions or duties performed by the nurses and nursing assistants who worked for the…entities. In other words, defendant McLain was obligated to withhold and pay over employment taxes for the nursing professionals who worked for any of his entitles.” In addition, McLain did comply with a Minnesota’s statute requiring that nurse staffing agencies like his certify that they are treating their nurses as employees and not independent contractors.

Sometimes it’s a gray area whether to treat workers as employees or independent contractors; but the wrong decision can have detrimental consequences to an employer, and its officers, resulting in large payroll tax liabilities and even tax evasion or tax fraud charges. The IRS has a number of criteria they use in determining whether a worker is an employee or an independent contractor and these federal criteria may differ on a state level as well.
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CPA Firm Dissed by 7th Circuit Court of Appeals

November 12, 2012 | by Dennis N. Brager

Our tax audits. The issue generally arises in closely held C corporations who pay out all of their profits as salary to the shareholders, rather than allocating any portion to dividends. The advantage is that salaries are deductible–dividends are not. An IRS tax audit can, however, result in the IRS denying a portion of the salaries as not being an ordinary and necessary business expense pursuant to tax attorneys that the CPA firm relied on the many individual employees of the firm who were “knowledgeable in income tax matters.” He wrote “… there was conflict in this case: taking advice from oneself.” But Judge Posner didn’t stop there. First he badmouthed the firm’s tax lawyers:

Remarkably, the firm’s lawyers (an accounting firm’s lawyers) appear not to understand the difference between compensation for services and compensation for capital, as when their reply brief states that the founding shareholders, because they “left funds in the taxpayer over the years to fund working capital,” “deserved more in compensation to take that fact into account.” True–but the “more” they “deserved” was not compensation “for personal services actually rendered.” Contributing capital is not a personal service. Had the founding shareholders lent capital to the company, as it appears they did, they could charge interest and the interest would be deductible by the corporation. They charged no interest (emphasis in original).

Not content with leaving it there Judge Posner finished up as follows:

We note in closing our puzzlement that the firm chose to organize as a conventional business corporation in the first place. But that was in 1979 and there were fewer pass-through options then than there are now; a general partnership would have been the obvious alternative but it would not have conferred limited liability, which protects members’ personal assets from a firm’s creditors.

Why the firm continued as a C corporation and sought to avoid double taxation by overstating deductions for business expenses, when reorganizing as a passthrough entity would have achieved the same result without inviting a legal challenge [citation omitted] is a greater puzzle.

The Tax Court was correct to disallow the deduction of the “consulting fees” from the firm’s taxable income and likewise correct to impose the 20 percent penalty. That an accounting firm should so screw up its taxes is the most remarkable feature of the case.

OUCH!
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Foreign Bank Accounts and the Failure to File Foreign Bank Account Reports (FBARS) May Be the Death Knell of the 5th Amendment

October 23, 2012 | by Dennis N. Brager

The Fifth Circuit Court of Appeals ruled that offshore bank account records sought in a tax evasion. The IRS already knew based upon records it received from UBS that the witness held offshore bank accounts.

To lay people, and even to most tax attorneys this was a startling result. Actually it would have been more startling, but for the fact that the Fifth Circuit Court of Appeals was the third Circuit Court of Appeals to hold that the Bank Secrecy Act which requires the filing of FBARs trumps the 5th Amendment of the U.S. Constitution. The Fifth Circuit, thus joined the 9th Circuit and the 7th Circuit which issued similar rulings in the last year.

The rulings rely on the “Required Records Doctrine.” This is a rather arcane concept which I suspect even some criminal tax attorneys were not familiar with. To vastly oversimplify, the argument goes like this. The 5th Amendment only prohibits compelled testimony; therefore compelling someone to produce records that are voluntarily kept does not violate the 5th Amendment. The witness argued that the mere act of turning over the records was tantamount to compelled “testimony” since by turning over the records the witness was “testifying” as their existence, and also admitting that he knew about the foreign accounts. In addition, maintaining the documents in question are not voluntary since the Bank Secrecy Act “compels” one to keep certain records. Indeed it is a crime not to keep the records.

The Supreme Court has said however that the privilege against self-incrimination does not bar the government from imposing record-keeping and inspection requirements as part of a valid regulatory scheme. The doctrine first arose in the context of a wholesaler of fruit who was required to turn over certain records he was obligated to keep pursuant the Emergency Price Control Act. The Supreme Court explained in a later case that there are three prongs of the Required Records Doctrine. The records must be:

Essentially regulatory
Customarily kept; and
Have public aspects.

The witness argued that the true purpose of the Bank Secrecy Act was to combat criminal activity, and not simply to regulate the use of foreign bank accounts. That argument was rejected. The 5th Circuit also held that the records were of a type “customarily kept,” and that they had acquired public aspects by virtue of the fact that the Treasury Department shares information it collects with other agencies. In the words of the Fifth Circuit: “That this data sharing is designed to serve an important public purpose sufficient to imbue otherwise private foreign bank account records with public aspects is not difficult to imagine.”

What is difficult to imagine is why the Courts are willing to throw away an important Constitutional safeguard for the sake of catching of few criminal tax cheats.
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California Tax Lawyer Enjoined From Providing Tax Advice or Preparing Tax Returns

October 10, 2012 | by Dennis N. Brager

San Diego tax attorney Scott Waage was enjoined from preparing tax returns or giving tax advice pursuant to an injunction entered by a federal district court. The injunction had been sought by the Department of Justice in a complaint filed in the Southern District of California pursuant to Internal Revenue Codes Sections 7401, 7402 and 7408.

In its complaint the Department of Justice alleged that tax lawyer Waage along with CPA Robert O. Jensen promoted tax fraud schemes to clients that illegally reduced the client’s reported income by, among other things, using sham consulting companies, and illegally structured employee benefit and pension plans. According to the complaint, Waage operated under the names of “The Tax Advisors Group, Inc.” and “Pensions by Design.” Apparently in his promotional materials tax lawyer Waage referred to himself as a “visionary tax attorney,” and a seasoned tax litigator. Currently if you try to click on Waage’s website at www.strategiclawgrouppc.com a message pops up that the site has been “disabled.”

According to the Department of Justice press release CPA Jensen had been enjoined in March from preparing tax returns that understate income. It makes one wonder why the Department of Justice needed an injunction to prevent CPA Jensen from preparing tax returns that understate income! I always assumed that CPAs (as well as tax lawyers and enrolled agents for that matter) were already not supposed to understate income. Still the IRS uses the injunction process as a convenient, and relatively quick method of putting a tax preparer out of business; and sometimes as an alternative to a criminal tax prosecution. However, in some cases the IRS uses an injunction as a stop gap measure while it puts together its criminal tax case.

Tax attorney Waage is apparently no stranger to IRS tax problems. According to a summons action filed against him in 2008, Waage’s law firm was under investigation for its federal income tax liabilities. U.S. v. Waage.

The injunction order against Waage also requires him to provide the IRS a list of his clients that have used his services since 2001. It is likely that those clients will be receiving tax audit notices from the IRS in the not too distant future. Even though the normal statute of limitations for income tax returns is only 3 years, in the case of tax fraud the statute of limitations is open indefinitely, and there is case law supporting the view that tax fraud includes tax fraud by the tax return preparer, nor merely the taxpayer.
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IRS Foreign Bank Account Report (FBAR), TD F 90-22.1 FBAR Relief for Non-Residents With Offshore Bank Accounts–Too Little Too Late

September 10, 2012 | by Dennis N. Brager

Relief from penalties for failure to file Foreign Bank Account Reports (FBAR), TD F 90-22.1 for non-resident U.S. persons with offshore bank accounts was first announced by the IRS on June 26, 2012 with further guidance promised before the procedure’s September 1st effective date. On Friday Aug. 31, 2012 with minutes to spare, the IRS announced the new “Streamlined” Filing Compliance Procedures for Non-Resident, Non-Filer U.S. persons. Those who qualify will only have to file tax returns for three years (rather than eight under the Offshore Voluntary Disclosure Program (OVDP)), and no FBAR penalties, or other penalties will be imposed. They will have to fill out a questionnaire, and answer such loaded questions as “Did you know you had a Report of Foreign Bank and Financial Accounts (FBAR), Form TD F 90-22.1, filing requirement when you failed to file an FBAR?” and “If you used a tax professional, did you disclose the existence of the accounts/entities you hold outside your country of residence to your tax professional?”

Who Is Eligible?
To qualify the taxpayer:

Must have lived outside the United States since Jan. 1, 2009;
Cannot have filed a U.S. tax return during the same period; and
Must present a “low level compliance risk.

How is Compliance Risk Determined?
The tax due for 2009, 2010, and 2011 must be less than $1,500 in each year. However, even if the tax due meets this low level if any of the following factors are present then the compliance risk rises, and the taxpayer may not be eligible to participate. The factors are:

If any of the returns submitted through this program claim a refund;
If there is material economic activity in the United States;
If the taxpayer has not declared all of his/her income in his/her country of residence;
If the taxpayer is under audit or investigation by the IRS;
If FBAR penalties have been previously assessed against the taxpayer or if the taxpayer has previously received an FBAR warning letter;
If the taxpayer has a financial interest or authority over a financial account(s) located outside his/her country of residence;
If the taxpayer has a financial interest in an entity or entities located outside his/her country of residence;
If there is U.S. source income; or
If there are indications of “sophisticated tax planning or avoidance.”

Taxpayers who meet all of these requirements will be few and far between. For example, consider a U.S. citizen who has emigrated to Israel. Generally new Israeli residents are granted a 10 year exemption from taxes for any income including interest or dividends generated outside of Israel. It would therefore not be surprising if such an individual invested outside of Israel. Yet that person would be excluded from the new IRS streamlined program since they have accounts outside their country of residence.

The requirement that excludes someone from participation if they are claiming a refund seems punitive. Why should someone have to forego a legitimate refund just to be free of FBAR penalties?

Why should persons with offshore bank accounts who filed tax returns be treated worse than those who didn’t file any tax returns at all? For that matter why should someone with U.S. source income (perhaps social security or pension income) not be able to obtain relief?

Note that a person who became aware of the FBAR requirements for offshore bank account owners, and filed a timely and accurate return for 2010 or 2011 may be barred from participating in the program based upon the literal requirements.

Do You Need A Reason Not to Participate in the Streamlined Compliance Procedure?

According to the IRS:

The new procedure provides no protection from the risk of criminal prosecution
Once a submission is made if the IRS determines that the Streamlined Compliance Procedure is not appropriate, the taxpayer may not participate in the Offshore Voluntary Disclosure Program (OVDP)

For these reasons the Streamlined Compliance Procedure is extremely risky for taxpayers who meet the guidelines for the 2009 through 2011 period, but have substantial offshore compliance issues in prior years.

Once again tax attorneys will be working full time to guide their clients through another thicket of IRS rules which seem only to reinforce the notion that the IRS is not serious about providing FBAR relief to those taxpayers who legitimately lost their way.
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Criminal Tax Case Involving Offshore Bank Accounts Leads to Lawsuit Against U.S. Billionaire

September 4, 2012 | by Dennis N. Brager

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When American billionaire Igor Olenicoff opened his offshore bank account with Swiss bank UBS, AG he was allegedly told he did not have to file Form TD F 90-22.1, or Foreign Bank and Financial Accounts Report, more commonly known as an FBAR, or pay taxes on the $180 million he held at the institution. In December 2007 Mr. Olenicoff pled guilty to willfully and knowingly filing a false tax return, yet sued the bank for $2.7 billion in damages less than a year later blaming it for his troubles. The case was dismissed last April because of his plea agreement, in which he took responsibility for his tax fraud in exchange for a reduced sentence.

Currently, UBS is suing Mr. Olenicoff for malicious prosecution. The bank argues that he was attempting to shift blame for not paying taxes on the money in his foreign bank account even though the billionaire swore in his criminal tax case that he willfully deceived the Internal Revenue Service. Mr. Olenicoff maintained in his suit against UBS that the bank misled him, and in doing so let him down the road to where he was forced to plead guilty to the criminal tax charges against him. Olenicoff also claimed that UBS mismanaged his offshore account assets. The financial institution is suing for special damages, including attorney’s fees and harm to the bank’s reputation, of more than $3 million, as well as other damages in an unspecified amount. Given UBS’ own settlement with the IRS for $780 million, its suit against Olenicoff is an interesting spectacle, but as a practical matter may not have much to do with the “average” foreign bank account holder.

Some people, who have failed to file FBARs reporting their foreign bank accounts did so as part of a plan to commit tax evasion by concealing their offshore bank account holdings. Others failed to file FBARs out of ignorance about the legal requirements. If you have a foreign bank account and are not currently in compliance you may be eligible for a reduced penalty under the Offshore Voluntary Disclosure Initiative (OVDI). OVDI offers participants the opportunity to gain tax compliance. Most taxpayers with an undisclosed offshore bank account who are currently not undergoing investigation can take participate.
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Offshore Bank Account Whistleblower Released from Prison

August 30, 2012 | by Dennis N. Brager

Former Swiss banker Bradley Birkenfeld has been released from prison where he had served 30 months of his 40-month sentence for his work at UBS, AG helping clients hide their offshore bank accounts. Mr. Birkenfeld exposed the Swiss bank as a facilitator for U.S. taxpayers who wished to commit tax fraud, and hide their income from the IRS in part by failing to file Form TD F 90-22.1, the Foreign Bank and Financial Accounts Report, commonly called the FBAR. Birkenfeld was linked to billionaire developer Igor Olenicoff who pled guilty to felony tax charges.

Mr. Birkenfeld was arrested and charged with conspiracy to defraud the U.S. Government in 2008. Some tax attorneys believe that Birkenfeld got a raw deal at sentencing given his high level of cooperation with the IRS. Mr. Birkenfeld told the Department of Justice and Senate investigators about the illegal practices that the Swiss bank encouraged. For example, he claimed that UBS instructed him to solicit the business of affluent Americans by telling them about the tax advantages of having an offshore bank account. He began working for the bank in 2001.

UBS paid a $780 million fine in 2009. The bank agreed to release the names of more than 4,000 U.S. account holders. Since then, the Internal Revenue Service has offered limited amnesty to offshore bank account holders through its Offshore Voluntary Disclosure Program. Its 2012 incarnation, the Offshore Voluntary Disclosure Initiative, gives any taxpayer who failed to file an FBAR the chance to regain tax compliance. The program has raised over $5 billion in additional taxes so far.
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In 2009, Mr. Birkenfeld filed a claim under a law awarding whistleblowers up to 30 percent of revenues recovered because of their efforts. According to his lawyer, Mr. Birkenfeld has a claim for the taxes paid by UBS as part of its $780 million settlement.

Former UBS Client Charged with Failure to File FBAR

August 17, 2012 | by Dennis N. Brager

Willful failure to file a Form TD F 90-22.1, or Foreign Bank and Financial Accounts Report, more commonly known as an FBAR is a criminal violation of the Bank Secrecy Act. Luis A. Quintero, a former UBS Client, found that out first hand when he was sentenced recently to four months imprisonment.

In 2004, Quintero formed two corporations, each with an offshore bank account opened at UBS AG of Switzerland. By the end of 2006, the total aggregate balance in the two accounts was over $4 million. He then transferred approximately $2.4 million from the accounts to the accounts of U.S. corporations he controlled. Although Quintero knew he had to file an FBAR and had previously filed the Form TD F 90-22.1 relating to bank accounts in Mexico in the name of one of his U.S. companies, he decided against filing it.

As part of an agreement and in order to avoid prosecution for helping taxpayers commit tax fraud, UBS provided the American government with the identities of certain U.S. customers. It is not clear from the Department of Justice press release whether Quintero was one of the UBS customers whose names was turned over to the IRS.

The IRS requires a U.S. citizen with an offshore bank account containing an aggregate value of more than $ 10,000 to file the FBAR. Those who have not filed the Form TD F 90-22.1 in the past, but wish to do so to comply with tax laws may be eligible to participate in the Offshore Voluntary Disclosure Program (OVDP). By voluntarily disclosing Swiss or other foreign bank accounts, participants may be subject to lower penalties rather than all possible penalties were imposed after a tax audit by the IRS. On the other hand depending upon the situation many taxpayers may wish to take the risk of an IRS audit because the penalties could, with proper representation by a tax attorney, turn out to be lower than under OVDI.

In addition to the four months in prison, the court sentenced Quintero to three years of probation with 250 hours of community service and a $20,000 criminal fine. Quintero also paid $2 million in civil penalties for failing to file the FBAR. The penalty appears to be equal to 50% of the balance in his offshore accounts.
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Tax Evasion Conviction Affirmed by Seventh Circuit

August 14, 2012 | by Dennis N. Brager

The sentence of an individual who pled guilty to tax fraud was affirmed by the Seventh Circuit Court of Appeals. John McKinney was charged with eleven counts of tax evasion and conspiracy to defraud, impede, impair, obstruct and defeat the functions of the Internal Revenue Service (IRS) in the collection of income taxes. McKinney’s actions are a textbook example of how to turn a financial problem into a criminal tax problem.

McKinney and his brother owned a construction company. Mr. McKinney failed to pay his taxes seven years between 1999 and 2006. In 2003, the IRS placed federal tax liens against McKinney for taxes he owed. He avoided the taxes by transferring money earned from his company into separate nominee accounts, which the brothers used for personal and household expenditures. McKinney gave the IRS Revenue Officer false statements regarding his ability to pay his taxes.

When his wife and sister-in-law applied for residential mortgages, which McKinney was unable to qualify for because of the federal tax liens, McKinney falsely told loan officers that they were both full-time employees of his company. However, neither worked for the company or reported this employment on their tax returns. These financial transactions diverted business income earned by the brothers into assets owned by their wives, thereby avoiding IRS tax assessments and tax liens.

The brothers made false statements regarding their inability to pay income taxes, causing the unsuspecting IRS to close its investigation in 2007. However, the IRS discovered the brothers’ tax fraud, and charged the brothers in 2011. McKinney pleaded guilty to one count of conspiracy, one count of tax evasion and three counts of making false statements. He was sentenced to nearly five years imprisonment with three years of supervised release. The court also ordered him to pay $1.5 million in restitution.
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Builder’s Tax Problems are a Springboard to Criminal Tax Charges

August 8, 2012 | by Dennis N. Brager

A North Carolina residential builder was arrested on criminal tax charges stemming from his civil tax problems. The Department of Justice and the IRS announced that William B. Clayton was charged with one count of attempting to obstruct IRS efforts to collect his unpaid tax liabilities and one count of knowingly converting and disposing of U.S. government property.

According to the indictment Clayton failed to file income tax returns from 1999 to 2004. He never filed for extensions. In 2005 and 2006, the IRS began assessment and collection proceedings against Clayton. In 2007, Clayton hired a certified public accountant to represent him before the IRS, and the CPA prepared and filed delinquent tax returns for him. Based on these returns, the IRS reduced its prior tax assessments. However, Clayton did not pay his liabilities, and collection proceedings against him continued. No doubt that included tax levies, and tax liens.

Between 2007 and 2010, Clayton allegedly obstructed the IRS’ collection efforts. Clayton allegedly hid property located in Virginia, which he partially owned, from the IRS. According to the press release he destroyed property that he had previously built and owned but that the Service had seized. The IRS had planned to auction the property in an effort to pay down Clayton’s tax liabilities. However, Clayton allegedly destroyed parts of the property and vandalized others.

If convicted, Clayton could face a maximum potential sentence of three years in prison and a fine of $250,000 on the tax law obstruction charge, and 10 years imprisonment and a fine of $250,000 on the conversion of government property charge.

As the IRS and the Department of Justice point out in their press release an indictment is merely an accusation. The defendant is presumed innocent unless proven guilty beyond a reasonable doubt.

Still if the charges are true it should be a reminder to people not to allow their tax problems to turn into something worse. Depending upon Clayton’s finances, chances are he could have resolved his tax problems through an offer in compromise, or an installment payment agreement with the IRS, but instead he allowed things to proceed to a point where instead the IRS filed criminal tax charges.
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