Defensa de Evasion de Impuestos en Texas

Que es tax evasion bajo 26 USC 7201

26 USC seccion 7201 — "Attempt to evade or defeat tax" — is most serious tax crime:

"Any person who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, shall be fined not more than $100,000 ($500,000 in the case of a corporation), or imprisoned not more than 5 years, or both, together with the costs of prosecution."

Note: 26 USC seccion 7201 statutory fine of $100,000/$500,000 superseded by 18 USC seccion 3571 — $250,000 for individuals, $500,000 for organizations, or twice gain/loss.

Two variants of section 7201:

• Evasion of assessment. Affirmative acts to evade assessment of tax — false return understating income, failure to file return when tax owed, false deductions, concealment of income.
• Evasion of payment. Affirmative acts to evade payment of assessed tax — concealing assets from IRS collection, transferring assets to avoid levy, lying to IRS collection officers, using nominees to hold assets.

Elements (assessment evasion):

1. Existence of substantial tax deficiency
2. Affirmative act of evasion or attempted evasion
3. Willfulness — voluntary, intentional violation of known legal duty

Spies v. United States, 317 U.S. 492 (1943), established affirmative act requirement — mere failure to file return insufficient for section 7201. Acts such as keeping double books, false entries, concealment of bank accounts, destruction of records, false statements to investigators all qualify as affirmative acts.

Substantial tax deficiency: case law has not established bright-line dollar threshold, but most prosecuted cases involve at least several thousand dollars. Government has discretion regarding which cases to prosecute.

Section 7203 (failure to file) y 7206 (false return)

Beyond 7201, several other criminal tax statutes commonly charged:

26 USC seccion 7203 — Willful failure to file return, supply information, or pay tax. Misdemeanor — maximum 1 ano prison y $25,000 multa per offense ($100,000 for corporation). Lower penalty than 7201 because no affirmative act of evasion required — just willful failure to file. Each tax year is separate offense. Common where defendant simply did not file returns despite known filing obligation.

Elements:

1. Required to file return, supply information, or pay tax
2. Failed to do so at time required
3. Failure was willful

26 USC seccion 7206(1) — False return/subscription. Felony — maximum 3 anos prison y $100,000 multa per offense. Signing return under penalty of perjury knowing return not true and correct as to every material matter. Often called "tax perjury." Each false return is separate offense. Frequently charged alongside 7201 — if 7201 conviction unobtainable, 7206 frequently fallback.

26 USC seccion 7206(2) — Aiding/abetting false return. Felony — maximum 3 anos. Willfully aiding, assisting, procuring, counseling, or advising preparation of false return. Frequently charged against return preparers, accountants, attorneys involved in false returns prepared for others.

26 USC seccion 7212(a) — Obstruction of IRS administration. Felony — maximum 3 anos. Corruptly endeavoring to obstruct or impede due administration of internal revenue laws. Marinello v. United States, 584 U.S. ___ (2018), narrowed section 7212(a) — requires nexus between defendant's conduct and pending or reasonably foreseeable IRS proceeding. Pre-Marinello broader interpretation no longer good law.

18 USC seccion 371 — Klein conspiracy. 5-year maximum. Conspiracy to defraud United States by impairing IRS function. Frequently charged in multi-defendant tax cases — provides charge against participants whose individual conduct insufficient for direct tax charges.

Cheek good-faith belief y willfulness

Cheek v. United States, 498 U.S. 192 (1991), substantially clarified willfulness standard in criminal tax cases. Supreme Court held:

"Willfulness, as construed by our prior decisions in criminal tax cases, requires the Government to prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty."

Two critical implications:

Good-faith belief defense. If defendant genuinely believed that tax law did not impose duty on him — even if objectively unreasonable belief — this negates willfulness. Cheek defendant believed wages were not "income" subject to tax. Court held belief, however unreasonable, was defense if genuinely held. Defense documents subjective belief through testimony, communications, written materials defendant relied upon, prior conduct consistent with belief.

Disagreement with law not defense. Critical distinction — good-faith belief que law does not impose duty is defense. Belief that law is unconstitutional or otherwise invalid (even good-faith belief) is NOT defense. Defendant must accept legal duty exists but reasonably (in subjective sense) believe it does not apply to him. Tax protester arguments (income tax unconstitutional, dollar is not legal tender, etc.) typically fall in non-defense category.

Practical applications:

• Reliance on tax professional advice — common Cheek defense. If defendant fully disclosed facts to qualified tax professional and acted on advice, willfulness negated. Defense documents communications and advice received.
• Confusion about applicability — if tax treatment of particular transaction genuinely ambiguous, defendant's good-faith belief of non-taxability is defense.
• Mistake of fact — if defendant believed factual circumstances rendered tax not owed (e.g., believed item was non-taxable gift), Cheek may apply.
• Mental capacity — diminished mental capacity may negate willfulness in appropriate cases.

Sansone lesser included y sentencing bajo USSG 2T1.1

Sansone v. United States, 380 U.S. 343 (1965), addresses lesser included offense doctrine in tax cases. Defendant charged with section 7201 (felony evasion) sought instruction on section 7203 (misdemeanor failure to file). Court held lesser included instruction only required if (1) lesser offense requires no element not also required for greater offense, and (2) evidence would permit jury to find defendant guilty of lesser but not greater offense.

Practical effect: section 7203 may be lesser included of section 7201 in failure-to-file evasion cases. Section 7206(1) may be lesser included of section 7201 in false-return evasion cases. Defense may seek lesser included instructions to provide jury alternative to acquittal or full conviction.

Sentencing bajo USSG seccion 2T1.1. Criminal tax sentencing uses Tax Table at USSG seccion 2T4.1 based on tax loss:

Tax-specific enhancements bajo 2T1.1:

• +2 if offense involved sophisticated means (multiple entities, shell companies, foreign accounts, structured transactions)
• +2 if defendant failed to report or correctly identify source of income exceeding $10,000 from criminal activity
• +2 to +4 abuse of position of trust bajo seccion 3B1.3 (accountant, attorney, return preparer)
• +2 to +4 role in offense bajo seccion 3B1.1

Tax loss calculation. Tax loss is the loss intended by defendant's conduct — typically tax that would have been owed if defendant had filed accurate return. Includes interest in some circumstances. Defense frequently challenges loss calculation — disputed deductions, basis arguments, character of income, allocation issues.

Defensas — Cheek good faith, no willfulness, no affirmative act

Common defenses en tax evasion cases:

Cheek good-faith belief. Most powerful defense — if defendant genuinely believed tax not owed, however unreasonable, Cheek precludes conviction. Defense documents subjective belief through testimony, communications, written materials, prior conduct. Reliance on tax professional is common variant — full disclosure to qualified professional plus action on professional advice typically negates willfulness.

No affirmative act (section 7201). Spies v. United States, 317 U.S. 492 (1943), requires affirmative act of evasion for section 7201. Defense argues alleged conduct was mere failure to file or pay — not affirmative act. If government cannot prove affirmative act, section 7201 must fail (though section 7203 may apply).

No tax deficiency or different deficiency amount. Government must prove substantial tax deficiency exists. Defense employs forensic accountants to: identify legitimate deductions not claimed, establish basis in property sold, properly characterize income, identify errors in IRS calculations. Tax loss reduction directly affects guideline range.

Reliance on accountant or attorney. If client provided accurate information to professional who prepared return and client signed return believing it accurate, reliance defense may negate willfulness for specific items. United States v. Bishop, 412 U.S. 346 (1973), allows reliance defense.

Statute of limitations. Criminal tax SOL is 6 anos bajo 26 USC seccion 6531 — different from standard 5-year SOL bajo 18 USC seccion 3282. Each tax year is generally separate offense. SOL runs from date of offense (typically filing date or due date of return).

Voluntary disclosure programs. IRS Voluntary Disclosure Practice (VDP) under IRS Criminal Investigation procedures provides path to avoid criminal prosecution by voluntarily disclosing willful violations and fully cooperating. Eligibility requires that disclosure be truly voluntary (before IRS investigation initiated). VDP not available once investigation underway. Decision to disclose requires careful counsel evaluation.

Errores comunes en IRS-CI investigations

Errores que aparecen en criminal tax cases:

Aggressive tax loss calculation. Government often overstates tax loss by ignoring legitimate deductions, basis arguments, character distinctions, allocation issues. Defense forensic accountants identify reductions. Tax loss directly determines guideline range — substantial dispute area.

Willfulness inference from conduct. Government may infer willfulness from conduct pattern. Defense provides legitimate explanations for conduct — confusion about applicability, reliance on advice, good-faith belief, mistake of fact.

Hearsay and authentication issues. Tax cases involve voluminous documents. Government must authenticate each document used at trial. Defense challenges chain of custody, authenticity, and hearsay issues with business records.

Crawford / Confrontation Clause issues. Statements made in IRS interviews, IRS audit reports, and Treasury reports may be testimonial hearsay subject to Confrontation Clause challenges under Crawford v. Washington, 541 U.S. 36 (2004).

Privileged communications issues. Communications with accountants are NOT privileged under federal law (except some limited Section 7525 federally authorized tax practitioner privilege for non-criminal matters). Defense ensures appropriate handling of accountant communications and identifies any attorney-involved communications subject to privilege.

Section 7212(a) overreach post-Marinello. Marinello v. United States, 584 U.S. ___ (2018), narrowed obstruction statute. Pre-Marinello broad interpretations no longer good law. Defense challenges section 7212(a) charges requiring nexus to pending or foreseeable IRS proceeding.

Brady / Giglio in cooperator cases. Cooperator testimony common. Government must disclose all impeachment material — prior inconsistent statements, plea deal terms, criminal history. Defense files specific Brady motions.

Que hacer si esta bajo investigation o cargado

Si esta bajo investigation o cargado por tax evasion:

1. Retenga abogado defensor tax/criminal inmediatamente. IRS-CI investigations typically involve special agents (badged law enforcement). Initial contact may be unexpected — IRS-CI special agents may approach at work or home. Early counsel can shape outcome — possibly preventing charges or limiting scope.

2. Preserve documents — but consult counsel first. Tax returns, supporting workpapers, accounting books and records, bank statements, business records, communications with accountants and attorneys, documents evidencing transactions, asset records. Document destruction post-notice triggers obstruction charges bajo 18 USC seccion 1519 (20 anos maximum).

3. No haga declaraciones a IRS-CI agents sin counsel. IRS-CI special agents typically attempt to interview targets early. False statements to IRS agents are separate crime bajo 18 USC seccion 1001 (5-year maximum). Decline interview until counsel present. Notably, IRS revenue agents (civil audit) are different from IRS-CI special agents (criminal). Civil audit interviews may continue with counsel — criminal investigation interviews should not occur without counsel.

4. Civil vs criminal track analysis. Some tax matters can be resolved civilly through IRS Office of Appeals or Tax Court litigation. Criminal exposure analysis is foundational — once criminal exposure identified, all civil interactions affect criminal case.

5. Voluntary disclosure consideration. IRS Voluntary Disclosure Practice (VDP) may provide path to avoid criminal prosecution if disclosure is truly voluntary (before investigation initiated) and full cooperation provided. VDP requires payment of back taxes, interest, and civil penalties — but criminal prosecution generally avoided. Eligibility narrow and requires careful counsel evaluation.

6. Tax preparer / return preparer issues. If accountant or return preparer involved in alleged offense, preparer may face own charges under section 7206(2) (aiding/abetting false return). Coordinate carefully — preparer cooperation against client is common.

7. Foreign account disclosure consideration. If foreign accounts unreported (FBAR/Form 8938), specific disclosure programs available. Failure to file FBAR can itself be criminal under 31 USC seccion 5322. Coordinate with international tax counsel.

DFW jurisdiction y resultados

Tax evasion cases en DFW may proceed in:

Northern District of Texas (TXND). Most federal tax cases en Dallas, Collin, Denton, Tarrant, Rockwall, Ellis, Johnson. Dallas Division has active IRS-CI presence. DOJ Tax Division and U.S. Attorney coordinate cases — Tax Division must approve all section 7201, 7203, 7206 charges under DOJ Justice Manual seccion 6-4.000.

Eastern District of Texas (TXED). Federal cases en Kaufman, Hunt, y eastern counties. Sherman Division y Plano Division handle DFW area cases.

El costo de defensa de tax evasion varies por complexidad. Single-year failure-to-file cases cost less than multi-year evasion schemes with offshore accounts, multiple entities, and substantial tax loss. Forensic accounting required in nearly all tax cases.

Los caminos realistas de resolution incluyen:

• Pre-charge declination. Tax Division review may decline prosecution based on insufficient evidence, lack of willfulness, or other considerations.
• Civil resolution. IRS Office of Appeals or Tax Court civil resolution avoiding criminal charges. Settlement involves back taxes, interest, civil penalties (including civil fraud penalty 75% of underpayment under 26 USC seccion 6663).
• Plea to lesser offense. Plea to section 7203 (misdemeanor) avoiding section 7201 (felony). Plea to section 7206 (false return) instead of section 7201 (evasion).
• Plea with cooperation. Cooperation against tax scheme organizers or co-conspirators yields USSG seccion 5K1.1 departure.
• Trial on Cheek good-faith or no affirmative act. If evidence supports good-faith belief or no affirmative act of evasion, trial may produce acquittal.

Para una revision gratuita y confidencial de su matter de tax evasion, llame al (972) 370-5060. L and L Law Group, PLLC representa clientes en federal TXND/TXED tax cases en los nueve condados de DFW.