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CPA Criminal Tax Exposure

By Spodek Law Group | January 22, 2023
(Last Updated On: March 11, 2023)

Last Updated on: 11th March 2023, 06:18 pm

Licensed CPAs have rights and duties of their own that they need to be aware of when a client becomes the subject of a criminal investigation. At times, when a client learns of a criminal investigation, fingers point in the CPA’s direction – especially when the client is trying to save themselves from penalties.   The time to be on the lookout for red flags that might indicate that a client is being dishonest or exhibiting tax reporting behavior that has the potential to open the client and possibly the CPA up to investigation is during client intake and tax interviews.
As a CPA, it is best to resist the desire to be the sympathetic all-knowing ear their clients are looking for concerning possible criminal tax issues. Best practice is to terminate the interview immediately if red flags are encountered and advise the client to enlist an experienced Criminal Tax Representation Attorney. Pursuant to the terms of a Kovel arrangement, CPAs can resume representation (under better circumstances under protection of the attorney-client privilege with regards to any future communication. Indeed, a CPA’s license is often their most valuable asset.  Involving a Criminal Tax Representation Attorney can mean the difference between assisting a client in resolving their potential or actual criminal tax problems and avoiding jail time or the CPA facing charges as an accomplice to a substantive tax crime.  The latter could be a career ending event.
What risks are involved for the CPA?
There’s a long list of misdemeanor and felony charges if tax preparers are not prudent. The legislation is structured in such a way that he or she can be simultaneously charged with both the greater and any lesser-included offenses that fall under the definition of the greater offense. In addition, a single action may actually be charged as a violation of multiple criminal tax statutes.
These are the most common tax crimes a CPA or taxpayer can be convicted of:

  • Aiding and abetting a tax offense
  • Filing a false, fraudulent or fictitious claim
  • Submitting a fraudulent or false statement
  • Conspiracy to commit a crime or defraud the United States government
  • Participating in the filing of a false return

On top of huge fines and penalties,  conviction can come with federal prison time, time in a halfway house, house arrest, or some combination of these.
When does a CPA need his or her own lawyer for Criminal Tax Exposure?
It is critical to work with effective legal counsel. As Criminal Tax Representation Attorneys, we are uniquely qualified to advise on such matters and get you the best possible results.
According to the AICPA tax division’s criminal practice guide, under certain circumstances it is advisable to seek representation on the basis of the nature of the services performed, the questions asked, or any other concerns the CPA may have. The ripest area of concern is when ethical requirements for CPAs in the face of possible criminal tax issues raised by a current or potential client. In such a scenario, the CPA needs to evaluate whether a potential conflict of interest exists with respect to continuing to service that client.
With the possibility of jail sentences and large financial penalties, a CPA should resist the urge to fully investigate a potential criminal tax matter.  The fact is that a CPA can be forced to testify against their client. Since there is a fiduciary relationship between client and CPA, the CPA is can be the most damaging witness the government can present in a case. On the other hand, a tax attorney enjoys special privileges that are in place to protect potentially incriminating communications by the taxpayer from being disclosed and that also prevent documents prepared in anticipation of trial from being discovered.
With the stakes so high, and heavy potential consequences to both the client and CPA, it is important that CPAs are aware of the legal and ethical issues surrounding criminal investigations and prosecutions.  That way, they can know when a referral is needed, and also protect themselves from their own ethical, civil and criminal exposure.
What is Willfulness in Criminal Tax Exposure for CPAs?
Under the law, willfulness is defined as a voluntary and intentional violation of a known legal duty.  There are defenses which focus on preventing the government from being able to establish this element. These include mistake, inadvertence, uncertain legal duty, negligence, reliance on others and diminished mental capacity.
It is worth noting that willfulness is often the easiest element of a tax crime to defeat because the government is obligated to prove to a jury what he defendant’s state of mind was at the time of the offense. Frequently, the government is forced to resort to circumstantial evidence to establish this element. Because of this, the government usually will refrain from prosecuting unless a pattern of complained of behavior can be established. Such a pattern in and of itself tends to indicate to a jury that the behavior was intentional and willful as opposed to mere negligence, for example.
More Defenses for Criminal Tax Exposure for CPAs
In general, the defenses used to fight tax charges by Tax Attorneys focus on the protecting of the client’s Fifth Amendment privilege against self-incrimination and their Fourth Amendment privilege against unreasonable searches and seizures.
Elements such as the defendant taxpayer’s lack of education and personal difficulties, including health problems, advanced age or family dilemmas are usually not considered defenses per se.  Nevertheless, these may be used to attempt to discourage prosecution as they could make it more difficult to convince a jury to convict by invoking sympathy for the defendant.
If you are a CPA and you are facing Criminal Tax Exposure, call us today for your free consultation.

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