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Tax Violations

NCJ Number
American Criminal Law Review Volume: 48 Issue: 2 Dated: Spring 2011 Pages: 1201-1245
Meg Slachetka; H. Joshua Rivera
Date Published
45 pages
This article presents an overview of the elements, defenses, and sentencing consequences of various criminal tax violations under the U.S. Internal Revenue Code (I.R.C.), sections 7201, 7202, 7203, 7206, and 7212 (a).
The article first examines the policies and procedures of IRS investigations, constitutional considerations, and the statute of limitations for I.R.C. violations. This is followed by a review of the basic elements and defenses of the following offenses: tax evasion, failure to collect tax, failure to file taxes, "tax perjury," "aiding and assisting" tax fraud, and interference with the administration of internal revenue laws. The article then explains the applicable punishment in the U.S. Sentencing Guidelines and various possible sentencing enhancements. For most tax violations, the Guidelines set a base offense level that corresponds to the amount of the tax loss. Generally, the tax loss equals the amount of taxes evaded by the taxpayer, excluding penalties or interest for the period in question, instead of the amount the IRS could actually recover. The amount of tax loss must be calculated "on the basis of the conduct of conviction and relevant conduct." The Federal criminal conspiracy statute, section 371 of Title 18 of the U.S. Code, identifies two types of unlawful conspiracies: a conspiracy to commit a substantive offense prohibited by another statute and a conspiracy to defraud the United States. In tax cases, charges of criminal conspiracy in violation of section 371 are most often brought under the defraud clause. A conspiracy to defraud the United States by frustrating the IRS in "its lawful information gathering functions" is called a "Klein conspiracy," named after a Second Circuit Court case. This article focuses on the use of section 371 in conspiracy cases. 310 notes