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Is Bribing Foreign Tax Collectors a Federal Crime?

By Irvin B. Nathan

Just when there appears to be a significant uptick in investigations for violations of the Foreign Corrupt Practices Act (FCPA), the Fifth Circuit has issued a decision that sows further confusion over the meaning of the FCPA's criminal prohibitions.

When confronted with the issue of whether bribes paid by an American company to foreign tax and customs officials for the purpose of reducing the amounts of the company's fiscal obligations constituted violations of the anti-bribery provisions of the FCPA, the first appellate court to address the question answered with a resounding “maybe.” United States v. Kay, 359 F.3d 738 (5th Cir. 2004). Further, the unanimous panel ruled that the indictment does not have to spell out the basis for the government's theory that this particular bribe to a foreign tax collector violated the statute even though other bribes to foreign tax collectors might not. The court suggested that this was a matter for the trial court to handle through a bill of particulars or a pre-trial hearing.

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