25.1.1. Overview/Definitions

Title 26 USC Section 7201 (Evasion) Felony

• Willfulness

• Attempt to evade or defeat (usually involves concealment or deception) tax or payment thereof

• Tax deficiency

Title 26 USC Section 7202 (Trust Fund Violation—Willful Failure to Collect or Pay Over Tax) Felony

• Willfulness

• Requirement to collect, truthfully account for, and pay over employment taxes

• Either failure to collect any tax or failure to truthfully account for and pay over any tax or both

Title 26 USC Section 7203 (Failure to File or Failure to Pay) Misdemeanor

• Willfulness

• Requirement to file a return, pay an estimated tax or tax, maintain records, or supply information

• Failure to file a return, pay an estimated tax or tax, maintain records, or supply information

Title 26 USC Section 6050I in Conjunction with 26 USC Sections 7203 and 7206 (Trade or Business Required to File a Form 8300 for Receiving More Than $10,000 Cash) Felony

• Willfulness

• Subject to reporting requirement relating to cash of more than $10,000 received in trade or business

• Evasion of reporting requirement by:

  1. Causing a trade or business to fail to file report, or

  2. Causing a trade or business to file false report, or

  3. Structuring transactions to avoid report

Title 26 USC Section 7204 (Employee Wage Statements) Misdemeanor

• Duty to deduct and withhold employment tax or income tax (26 USC 3102(a), 3402(a)

• Duty to timely furnish to the employee a written statement showing specified information concerning the deductions (26 USC 6051)

• Furnishing a false or fraudulent statement to an employee, or the failure to furnish a statement to an employee at the required time and in the required manner

• Willfulness

Title 26 USC Section 7205 (False W–4) Misdemeanor

• Duty to supply information to employer regarding income tax withholding (26 USC 3402(f)(2))

• Furnishing false or fraudulent information or failure to supply information, which would require an increase in tax to be withheld

• Willfulness

Title 26 USC Section 7206(1) (False return) Felony

• Making and subscribing a return or other document under penalties of perjury

• The return, statement or other document, which was false as to a material matter

• Belief that it is not true and correct as to every material matter

• Willfulness

Title 26 USC Section 7206(2) (Assisting in Preparation of False Return) Felony

• Aiding or assisting in, procuring, counseling, or advising the preparation or presentation of a document in connection with matters arising under the internal revenue laws

• Document was false as to a material matter

• Willfulness

Title 26 USC Section 7206(4) (Removal or Concealment with Intent to Defraud) Felony

• Tax imposed on property

• Property on which tax is imposed or will be imposed or levy is authorized

• Removal or concealment

• Intent to evade or defeat assessment or collection of tax

Title 26 USC Section 7206(5) (Compromises & Closing Agreements) Felony

• Willful concealment of property or

• Willful withholding, falsifying and destroying records

• Receives, withholds, destroys, mutilates, or falsifies any book, document, or record, or makes any false statement.

Title 26 USC Section 7207 (Submission of False Documents) Misdemeanor

• Wilfulness

• Delivery or disclosure to any officer or employee of the Internal Revenue Service of any list, return, account, statement, or other document Return, statement, or other document is false or fraudulent as to a material matte

• Knowledge of material falsity

Title 26 USC Section 7212(a) "Omnibus Clause" Felony

• Corrupt effort, endeavor, or attempt

• To impede, obstruct or interfere with

• Due administration of Title 26

Title 26 USC Section 7212(a) (Corrupt or Forcible Interference) Felony or Misdemeanor

• Use of force or threat

• To intimidate, impede or obstruct

• An officer or employee of the U.S. acting in official capacity under Title 26

Title 26 USC Section 7212(b) (Forcible Rescue of Seized Property) Felony

• Forcible rescue or attempt to forcibly rescue

• Seized property

• Knowledge of seizure

Title 26 USC Section 7215 (Collection & Paying Tax) Misdemeanor

• Taxpayer was a person required to collect, account for, and pay over income tax withholding on wages and FICA taxes

• Taxpayer was notified of the failure to collect, account for, and pay over

• Taxpayer failed to collect, account for, and pay over the taxes, while not entertaining a reasonable doubt as to whether the law required the taxpayer to do so, and the failure was not due to circumstances beyond the taxpayer’s control

Title 26 USC Section 7232 (Failure to Register) Felony

• Fails to register in connection with taxable purchase -diesel fuel and special motor fuels, or

• Falsely represents that he is registered, or

• Willfully makes false statement in an application for registration.

Title 18 USC Section 2 (Principal/Aiding and Abetting) Felony or Misdemeanor

1. Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal

2. Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

Title 18 USC Section 152(1) (Concealment of Property) Felony

• Bankruptcy proceeding was in existence;

• Individual fraudulently concealed the property from the custodian; and

• Property belonged to the bankruptcy estate.

Title 18 USC Section 152(2) (False Oath or Account) Felony

• Existence of a bankruptcy proceeding;

• Statement under oath;

• Statement must be false; and

• Statement was made knowingly and fraudulently makes a false oath or account in or in relation to any case under title 11.

Title 18 USC Section 152(3) (False Declarations) Felony

• Existence of a bankruptcy proceeding;

• Individual made a false declaration, certificate, verification, or other statement in relation to the bankruptcy proceeding;

• Statement was knowingly and fraudulently makes a false declaration, certificate, verification, or statement under penalty of perjury as permitted under Section 1746 of Title 28, in or in relation to any case under title 11.

Title 18 USC Section 152(4) (False Claims) Felony

• Bankruptcy proceedings have commenced; Individual presented or caused to be presented a proof of claim in the bankruptcy;

• Proof of claim was false as to a material matter; and

• Individual knew the proof of claim was false and acted knowingly and fraudulently presents any false claim for proof against the estate of a debtor, or uses any such claim in any case under title 11, in a personal capacity or as or through an agent, proxy, or attorney;

Title 18 USC Section 152(5) (Fraudulent Receipt of Property) Felony

• Individual receives a material amount of property from a debtor

• Such transfer occurred after the filing of a case under Title 11; and

• Acts were done with the intent to defeat the provisions of Title 11.

Title 18 USC Section 152(6) (Extortion and Bribery) Felony

• Individual gives, offers, receives, or attempts to obtain money or property, remuneration, compensation, reward, advantage, or promise for acting or forbearing to act in any case under Title 11; and

• Action was made knowingly and fraudulently.

Title 18 USC Section 152(7) Fraudulent Transfer or Concealment) Felony

• Individual fraudulently transferred or concealed the defendant's property or the property of another; an

• Such act of transfer or concealment was done with the intent to defeat the provisions of Title 11, or in contemplation of a case under Title 11.

Title 18 USC Section 152(8) (Destruction or Alteration of Recorded Information) Felony

• Bankruptcy proceeding existed

• Individual concealed, destroyed, or mutilated the documents;

• Such documents related to the property or financial affairs of the debtor; and

• Individual acted knowingly and fraudulently.

Title 18 USC Section 152(9) (Withholding of Recorded Information) Felony

• Bankruptcy proceeding existed;

• Individual withheld from the trustee entitled to its possession; books, documents, records, or papers;

• Such documents related to the property or financial affairs of the debtor; an

• Individual withheld the documents knowingly and fraudulently.

Title 18 USC Section 157 (Bankruptcy Fraud) Felony

• Defendant devised or intended to devise a scheme or artifice to defraud; and

• For the purpose of executing or concealing such scheme or artifice or attempting to do so;

• Files a petition under Title 11; or

• Files a document in a proceeding under Title 11; or

• Makes a false or fraudulent representation, claim, or promise concerning or in relation to a proceeding under Title 11

Title 18 USC Section 286 (Conspiracy to Defraud the government with Respect to Claims) Felony

• An agreement, combination, or conspiracy to defraud the United States

• By obtaining or aiding to obtain the payment of any false, fictitious or fraudulent claim.

Title 18 USC Section 287 (False Fictitious or Fraudulent Claims) Felony

• Knowingly makes or presents (statute does not require that person providing false information to return discounter* who filed return actually file return to be guilty under 287)

• False, fictitious or fraudulent claim

• Knowing that claim filed is false, fictitious or fraudulent.

Title 18 USC Section 371 (Conspiracy) Felony

• The general conspiracy statute encompasses two distinct types of conspiracies;

1. Conspiracy to commit any federal offense

2. Conspiracy to defraud the United States or any agency thereof, which includes the Service

• Essential elements of a Section 371 offense are:

1. Agreement by two or more parties

2. To commit an offense against the United States; or, to defraud the United States or one of its agencies

3. Overt act by one or more of the parties in furtherance of the agreement

4. Requisite intent to defraud or to commit the substantive offense

Title 18 USC Section 1001 (False Statements) Felony

• Either:

1. Falsifying, concealing or covering up any material fact by any trick, scheme, or device; or

2. Making false, fictitious or fraudulent statements or representations; or

3. Making or using any false writing or document.

• Knowingly and willfully

• In a matter within the jurisdiction of a department or agency of the United States

• False matter was of a material nature.

Title 18 USC 1956 (Laundering of Monetary Instruments) Felony

• Whoever, knowing that property involved in a financial transaction represents proceeds of a specified unlawful activity (SUA).

• Conducts such a financial transaction, which in fact involves proceeds of a SUA:

1. A.i. with the intent to promote the carrying on of SUA; or

2. ii. with the intent to engage in conduct constituting a violation of section 7201 or 7206 of the IRC; or

3. B. knowing the transaction is designed in whole or in part:

4. i. to conceal or disguise the nature, location, source, ownership, or control of the proceeds of SUA; or

5. ii. to avoid a transaction reporting requirement under State or Federal law.