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Civil FBAR Penalties
In an ordinary tax case, the government must show that a taxpayer's actions constituted a “voluntary, intentional violation of a known legal duty.” U.S. v. Pomponio, 429 U.S. 10, 12 (1976). To prove this, a showing that the taxpayer acted with “careless disregard” is inadequate. Id. Furthermore, the seminal case of Cheek v. U.S., 498 U.S. 192 (1991), stands for the proposition that an honest belief that one's conduct did not violate the law, no matter how unreasonable that belief, results in a finding of non-willfulness.
Despite these long-standing legal precedents, under the OVDP, absent some extraordinary facts ' such as proof that the client's return preparer had full knowledge of the foreign account yet failed to both: 1) check the box on Schedule B reporting the account; and 2) include the account income on the return ' the IRS has been unmoved by arguments that taxpayers should receive a lower FBAR penalty for non-willful violations. The IRS's position has been that failure to check the box on Schedule B is, in and of itself, proof of willfulness.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.