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Tax Fraud Defense

These cases necessarily involve Constitutional issues pertaining to the United States Constitution. You have the right to a lawyer and all of the other constitutional protections such as the right to remain silent. The IRS has the burden of proof, unlike in non-tax fraud cases. The IRS will, therefore, resort to search warrants as a means of collecting evidence. This procedure should always be closely scrutinized by a competent attorney to determine if the evidence can be suppressed. Particularly the Fourth Amendment provides that people are secure in their persons, papers and effects, against unreasonable searches and seizures by the IRS or Department of Justice unless there is probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The scope of this protection extends to any area in which an individual has a reasonable expectation of privacy. Further, the Fourth Amendment provides that all warrants shall be based upon probable cause and supported by oath or affirmation.

1. Rule 41 of the Federal Rules of Criminal Procedure contains the procedures for obtaining a warrant. Briefly, Rule 41 provides for the issuance of a warrant by a federal magistrate or a judge of a state court of record within the district where the property or person sought is located, upon request by a federal law enforcement officer or an attorney for the Government.

2. The warrant may be issued to seize:

  • Property that constitutes evidence of the commission of a crime
  • Contraband, the fruits of a crime, or things otherwise criminally possessed
  • Property designed or intended to be used as an instrumentality of a crime
  • People, when there is probable cause for their arrest

3. The warrant should be based upon a sworn affidavit that establishes the grounds for issuance. If the magistrate (federal officer) is satisfied that the grounds for the application exist or that there is probable cause to believe that they exist and approves the warrant, then the officer has ten days to execute the warrant. The search should be performed during the daytime (between 6:00 a.m. and 10:00 p.m.) unless the issuing authority has authorized execution at other times. The officer taking the property is required to provide a copy of the warrant and a receipt for the property taken. The return to the magistrate shall be made promptly and accompanied by a written inventory of the property taken.

4. Congress has empowered special agents to seek and to execute search warrants in their investigation of their statutes of jurisdiction. A search warrant is often indispensable in investigating criminal conduct related to violations of the tax code. As a general principle, special agents are guided in their use of search warrants by Criminal Investigation policies and procedures. Special agents are constrained by the requirements of the IRM regarding the tactical choice to use a search warrant, which requires them “to execute their law enforcement responsibilities by continually assessing…the probable impact of their enforcement activities on the image of the IRS.” This directive is interpreted by both the IRS and Criminal Investigation management as requiring Criminal Investigation to employ the least intrusive means needed in their investigations. Both IRS and Department of Justice (DOJ) policy allow for the use of search warrants in tax and tax-related investigations “with restraint and only in significant tax cases.”

5. Criminal Investigation’s policy on search warrants is that prior to the approval of a search warrant enforcement action, Government Counsel will review all search warrants where a special agent is the affiant for the warrant. This review will be conducted for warrants in both tax and money laundering investigations. Government Counsel’s review is required for search warrants obtained in both administrative and grand jury investigations; it will review the affidavit for the search warrant and the Enforcement Action Review Form. Subsequent to their review, the Criminal Tax attorney will provide written advice to the Special Agent in Charge (SAC) for the SAC’s consideration in the search warrant approval process.

6. Whenever the subject of a search warrant concerns an individual or entity within the purview of Tax Exempt Government Entities (TEGE), Criminal Tax attorneys are encouraged to contact Criminal Tax Division Counsel for coordination with the Division Counsel/Associate Chief Counsel (TEGE).

7. Counsel will also conduct a post search warrant inventory review for all warrants obtained in tax and tax-related investigations. They will not conduct an inventory review for warrants obtained in pure money laundering investigations.

8. A search warrant authorizes a limited intrusion into an area protected by the Fourth Amendment. A neutral and detached magistrate (judicial officer) may, upon a finding of probable cause, issue a search warrant. The search warrant must specify with particularity the area/premises to be searched and the persons or things to be seized. This requirement of particularity prevents a general, exploratory rummaging in a person’s belongings. The premises to be searched must be sufficiently described to enable the executing officers to ascertain and to identify it with reasonable certainty. Also, the persons or things to be seized must be specifically described, leaving nothing to the discretion of the executing officers.

9. The use of a search warrant by special agents may be authorized in criminal tax investigations and any other criminal investigation within the law enforcement jurisdiction of the IRS. Criminal Investigation is required, however, to recognize that use of a search warrant in criminal investigations requires an evaluation of whether less intrusive means are reasonably available to acquire the evidence sought due to the invasive nature of the search warrant. Criminal Investigation has established a policy in accordance with the recommendations of the Webster Commission requiring special agents to analyze whether less intrusive means are reasonably available to acquire evidence sought in a proposed search warrant in all tax and tax-related investigations.

10. Criminal Tax attorneys do not attend or participate in the actual execution of the search, but you should be available by phone to answer questions that may arise during the search.

11.For all tax and tax-related search warrants, Criminal Tax attorneys must conduct a review of the seized property inventory prepared by Criminal Investigation to ensure the items seized are within the scope of the warrant and to identify any inconsistencies for Criminal Investigation.

If you or you business have been contacted by the IRS and if you are looking for a tax lawyer to compromise, negotiate, or effectively deal with the IRS, or if you or your business is in need of tax litigation, or tax defense, we, the Michael Ablan Law Firm can help you. With an experienced and aggressive yet honest, trustworthy and friendly legal team consisting of a lawyer with 35 years of experience, specialized paralegals, and a tax accountant, the Michael Ablan Law Firm in La Crosse, WI can help you. We also have offices in La Crescent, Minnesota and Hayward, Wisconsin. Contact us for a free consultation. Our expert legal services are available to you anywhere in the State of Wisconsin including but not limited to the counties of La Crosse, Trempealeau, Monroe, Crawford, Vernon, Grant, Jackson or any other county in Wisconsin or in the state of Minnesota, including all counties surrounding La Crescent, MN, such as Houston and Winona and any other county.

IRS CIRCULAR 230 DISCLOSURE: To ensure compliance with requirements imposed by the IRS, we inform you that, unless expressly stated otherwise, if any U.S. federal tax advice contained in this communication, (including any attachments) is not intended or written to be relied upon or used, and cannot be relied upon or used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction of matter addressed herein.