“The U.S. taxpayer’s exposure to civil penalty/criminal prosecution for unreported income and undisclosed foreign financial accounts is a “double-edged” sword with dual civil/criminal: Evidentiary Standards of Proof, Statute of Limitations, and Collateral Estoppel Issues.
If the IRS first institutes a civil tax audit, they may summons evidence, which may support both a civil penalty (e.g. fraud) and criminal culpability (e.g. tax evasion). The evidence from the civil tax audit may then be used for a subsequent criminal prosecution of the same U.S. taxpayer.
Civil and criminal tax deficiencies may differ; Criminal violations are charged only against the tax deficiency that results from fraud.
Civil tax deficiency includes all tax due on the tax returns (i.e. “evaded income and deductions adjustments).
Under a civil tax audit, the IRS may obtain evidence that may be illegal under criminal proceedings (e.g. Fifth Amendment defenses objecting to “tainted evidence”) tax evidence obtained from the civil tax audit may enable the IRS (i.e. the U.S. Attorneys to initiate criminal proceedings against the taxpayer).”
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Our author, Gary S. Wolfe, has more than 34 years of experience, specializing in IRS Tax Audits and International Tax Planning/Tax Compliance, and International Asset Protection.