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Tax Crimes: Has the Bright Line Moved?
We are longtime members of the ABA Section of Taxation Civil and Criminal Tax Penalties Committee. Our thrice-annual Saturday morning meetings used to involve continuing education only among lawyers joined by the common bond of representing clients who were not just aggressive in their tax affairs but who really cheated (or at least were thought to have by the government). Often, our civil tax colleagues would rib us about laboring in the dark underworld of tax practice. For the past few years, though, our sessions have been packed with practitioners who never before cared much about developments in the world of criminal tax law.
The reason for our overcrowded gatherings is the 2005 indictment of 19 former tax practitioners, most of them ex-senior employees of the accounting giant KPMG, in U.S. v. Stein, S1 05 Cr. 888 (LAK) (SDNY). White-collar practitioners know the case as a result of Judge Lewis Kaplan's dismissal of charges in July 2007 against 13 of the defendants based on a finding that prosecutors unconstitutionally interfered with KPMG's decisions regarding payment of legal fees to its current and former employees. The case is far from over, though ' there have been five guilty pleas, other defendants await trial, other involved entities are still in play, and the Second Circuit is considering Judge Kaplan's original dismissal order. Federal prosecutors in New York also recently indicted four present and former partners at Ernst & Young on similar charges in a case styled U.S. v. Coplan, 07 Cr. 0453 (SHS) (SDNY). Comparable investigations are cropping up across the country.
The Stein and Coplan cases entail multiple counts of conspiracy to defraud the United States and tax evasion lodged against accountants, lawyers and investment advisers, charging that they knowingly and intentionally devised transactions designed to look like they had a real business purpose when in fact they were designed only to produce huge tax savings for the wealthy individuals who paid substantial fees for their implementation.
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