By Caroline Rule
ABA Section of Litigation, Criminal Litigation Committee
December 5, 2019
Always request a DOJ Tax Division conference as soon as it appears that your client may face federal criminal tax charges.
Suppose that you have a client who can afford for you to travel to Washington, D.C., and who
- is undergoing a sensitive, or “eggshell,” IRS audit that may lead to the matter being transferred from the civil side of the IRS to IRS Criminal Investigation (CI);
- is already, or is likely to be, under investigation by CI;
- is the target or subject of a grand jury investigation that may involve tax issues; or
- is in any other way likely to be the subject of a federal criminal tax investigation.
If this is the case, you should immediately write to the Department of Justice (“DOJ”) Tax Division, Criminal Enforcement Section (“Tax Division”) and request a conference in the event that your client’s matter is referred there.
This is because, unlike all other federal crimes, tax crimes may not be prosecuted by a local U.S. Attorney’s Office without prior approval from the central DOJ. See 28 C.F.R. § 0.70 (authority over “criminal proceedings under the internal revenue laws” is assigned to the Assistant Attorney General, Tax Division); United States Attorneys’ Manual (USAM) § 6-4.200 (1997).
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