Handbook 9.1
Criminal Investigation Mission, Authority,
Organization and Directives
Chapter 3
Criminal Statutory Provisions and Common Law
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Contents
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Federal crimes are exclusively statutory crimes since the general police
power is still lodged in the several states. Federal prosecution is limited
to the areas prescribed by federal statute.
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The initial section of this chapter defines various aspects of the law.
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The following sections of the chapter contain:
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The complete text of the more frequently used penal sections of the United
States Code, Title 26, Internal Revenue Code, and some elements that need
to be established to sustain prosecution.
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The complete text of the penal sections of the United States Code, Title
18, that are within the jurisdiction of Internal Revenue Service (IRS), and
some elements that need to be established to sustain prosecution.
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The complete text of the penal statutes of the United States Code, Title
31, that are within the jurisdiction of IRS.
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The complete text of the statutes governing the Periods of Limitation for
criminal prosecution for both Title 26 and Title 18
prosecutions.
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Information relating to criminal fines and penalties.
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This chapter does not include the text of the civil and criminal forfeiture
statutes within CI jurisdiction. See the Asset Seizure and Forfeiture Handbook,
9.7 concerning those topics. Exhibit 3-1 provides a list of those statutes
within the jurisdiction of Criminal Investigation (CI) including the forfeiture
statutes.
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Laws are rules of conduct which are prescribed or formally recognized as
binding and are enforced by the governing power.
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Statutory law refers to laws enacted and established by a legislative body.
All federal crimes are statutory, but common law is frequently used for defining
words used in the statutes. For example, statutes provide penalties for attempted
evasion of income tax but they do not define the terms "attempt" and "evasion."
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Common law comprises the body of principles and rules of action relating
to government and security of persons and property which derive their authority
solely from usages and customs or from judgments and decrees of courts
recognizing, affirming, and enforcing such usages and customs.
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Substantive law creates, defines, and regulates rights, duties, responsibilities,
and obligations, whereas adjective or remedial law provides rules for enforcing
rights or obtaining redress for their invasion.
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Adjective law provides rules of practice concerning proceedings before, during,
and after trial, and rules of evidence relating to the admission of evidence
at trials and the testing of the credibility and competency of witnesses.
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Criminal law is that branch of law which defines crimes and provides punishments.
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The criminal sanctions, generally involving imprisonment and fines, are covered
in Chapter 75 of the Internal Revenue Code (IRC). In addition, some of the
criminal sanctions in Title 18, and Title 31 United States Code, also apply
to Internal Revenue matters.
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An act is a crime against the United States only if committed or omitted
in violation of a statute forbidding or commanding it, or in violation of
a regulation having legislative authority. Crimes are classified and defined
in Section 1, Title 18, United States Code, as follows:
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Notwithstanding any Act of Congress to the contrary:
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(1) "Any offense punishable by death or imprisonment for a term exceeding
one year is a felony."
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(2) "Any other offense is a misdemeanor."
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(3) "Any misdemeanor, the penalty for which does not exceed imprisonment
for a period of six months or a fine of not more than $500, or both, is a
petty offense."
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See Sections 3.4.1 and 3.4.2 in this chapter pertaining to United States
Code Title 18, sections 2 and 3.
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Civil law relates to the establishment, recovery, or redress of private and
civil rights
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The civil sanctions, generally assessed as additions to the tax and also
referred to as ad valorem penalties, are covered in Chapter 68 of the Internal
Revenue Code. Some of these penalties are:
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The delinquency penalty (not exceeding 25 percent) for failure to file a
return or a timely return (26 IRC 6651).
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The 20 percent negligence penalty for negligence or intentional disregard
of rules and regulations (26 IRC 6662).
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The 75 percent fraud penalty on an underpayment of any part of which is due
to fraud (26 IRC 6663).
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For more information concerning the civil aspects of a criminal investigation
or prosecution, see Handbook 9.6.
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Statutes of limitations are founded upon the liberal theory that prosecutions
should not be allowed to remain open endlessly in the files of the government
to be surfaced only after witnesses and proof necessary to the protection
of the accused have become unavailable by sheer lapse of time. They amount
to legislative restraints on the executive power to punish wrongdoers, which
grant malefactors complete immunity from prosecution after stated periods
of time.
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"The statute (of limitations) is not a statute of process to be scantily
and grudgingly applied, but an amnesty, declaring that after a certain time
oblivion shall be cast over the offense." (Wharton, Criminal Procedure, 415
(10th Ed. 1918).) In other words, the statute is liberally interpreted in
favor of the accused.
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Section 3.6 of this chapter is a general discussion of the periods of limitation.
If there is something unique about the statute of limitations concerning
a particular offense, it will be discussed in the subsection describing that
offense. Also see Chapter 5 of the Multifunctional Handbook entitled, Statute
of Limitations.
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[9.1] 3.3 (07-29-1998)
TITLE 26--CRIMINAL PENALTIES APPLICABLE TO FRAUD AND MISCELLANEOUS
INVESTIGATIONS
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Chapter 75 of the Internal Revenue Code of 1986, entitled Crimes, Other Offenses,
and Forfeitures, is effective for offenses committed after August 16, 1986.
The following penal sections of Chapter 75 apply to all taxes imposed by
Title 26, United States Code (Internal Revenue Code), unless the particular
section states that it applies to a specific tax. The subsections which follow
will provide the wording of the statute and in some instances the elements
of an offense and common law interpretations. IRC 6050I is also stated. It
provides for a criminal penalty as well.
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[9.1]
3.3.1 (07-29-1998)
IRC 6050I. Structuring Transactions to Evade Cash Reporting Requirements
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IRC 6050I establishes the requirement of businesses to file Form 8300 when
in receipt of $10,000 in cash from one transaction or two or more related
transactions.
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IRC 6050I(f) is the part of the statute that prohibits structuring transactions
to evade the reporting requirements. It states,
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(1) In general . . .No person shall for the purpose of evading
the return requirements of this section--
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(A) cause or attempt to cause a trade or business to fail to file a
return required under this section,
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(B) cause or attempt to cause a trade or business to file a return required
under this section that contains a material omission or misstatement of fact,
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(C) structure or assist in structuring, or attempt to structure or assist
in structuring, any transaction with one or more trades or businesses.
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(2) Penalties. A person violating paragraph (1) of this subsection
shall be subject to the same civil and criminal sanctions applicable to a
person who fails to file or completes a false or incorrect return under this
section.
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For more information concerning the penalties associated with a violation
6050I see the note under section 3.3.4 of this chapter.
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IRC 7201 states; "Any person who willfully attempts in any manner to evade
or defeat any tax imposed by this title or the payment thereof shall, in
addition to other penalties provided by law, be guilty of a felony and, upon
conviction thereof, shall be fined not more than $100,000 ($500,000 in the
case of a corporation), or imprisoned not more than 5 years, or both, together
with the costs of prosecution."
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Avoidance of taxes is not a criminal offense. Any attempt to reduce, avoid,
minimize, or alleviate taxes by legitimate means is permissible. The distinction
between avoidance and evasion is fine, yet definite. One who avoids tax does
not conceal or misrepresent. He shapes events to reduce or eliminate tax
liability and, upon the happening of the events, makes a complete disclosure.
Evasion, on the other hand, involves deceit, subterfuge, camouflage, concealment,
some attempt to color or obscure events, or makes things seem other than
they are. For example, the creation of a bona fide partnership to reduce
the tax liability of a business by dividing the income among several individual
partners is tax avoidance. However, the facts of a particular case may show
that an alleged partnership was not, in fact, established and that one or
more of the alleged partners secretly returned his or her share of the profits
to the real owner of the business, who, in turn, did not report this income.
This would be an instance of attempted evasion.
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The elements of the offense of willfully attempting in any manner to evade
or defeat any tax or the payment of any tax are the same, but the courts
have interpreted the terms differently in some instances. The differences
are noted in the explanation. The elements of the offense are:
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Additional tax due and owing.
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An attempt in any manner to evade or defeat any tax.
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Willfulness.
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The government must establish that at the time the offense was committed
the taxpayer owed more "tax than he reported." However, it is not necessary
to prove evasion of the full amount alleged in the indictment. It would be
sufficient to show that a substantial amount of the tax was evaded, and this
need not be measured in terms of gross and net income or by any particular
percentage of the tax shown to be due and payable.
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NOTE:
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The element of tax due and owing for IRC 7201 in reference to the evasion
or attempted evasion of payment of tax is slightly different. When the government
charges attempted evasion to pay, it must establish that a tax is due and
owing at the time the offense is committed (like evasion). Unlike evasion,
this amount need not be any additional tax or deficiency but could be the
amount of tax shown on the original return which had not been paid.
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Carryback losses are technically no legal impediment to prosecution for years
in which they eliminate the tax liability. However, the probability of conviction
could be lessened where it is shown that a tax deficiency does not exist
by operation of law.
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Likewise, the acceptance by government agents of agreement Form 870 (Waiver
of Restrictions on Assessment and Collection of Deficiency in Tax and Acceptance
of Overassessment) does not bar prosecution. However, experience has demonstrated
that attempts to pursue both the criminal and the civil aspects of a case
concurrently may jeopardize the successful completion of the criminal case.
As a result, Policy Statement P-4-84 provides, among other things, that the
consequences of civil enforcement actions on matters involved in the criminal
investigation and prosecution case should be carefully weighed.
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The substance of the offense under IRC 7201 is the term "attempt in any manner"
. The statute does not define attempt, nor does it limit or define the means
or methods by which the attempt to evade or defeat any tax may be accomplished.
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However, it has been judicially determined that the term "attempt" implies
some affirmative action or the commission of some overt act. The actual filing
of a false or fraudulent return is not requisite for the commission of the
offense though the filing of such a return is the usual attempt to evade
or defeat the tax. A false statement made to Treasury agents for the purpose
of concealing unreported income has also been judicially determined to be
an attempt to evade or defeat the tax.
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The willful omission of a duty or the willful failure to perform a duty imposed
by statute does not per se constitute an attempt to evade or defeat. However,
a willful omission or failure (such as a willful failure to make and file
a return) when coupled with affirmative acts or conduct from which an attempt
may be inferred would constitute an attempt. In the case of Spies v. United
States , the Supreme Court gave certain illustrations of acts or conduct,
which may infer "the attempt to evade or defeat any tax" ; such as:
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Keeping a double set of books.
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Making false entries, alterations, invoices, or documents.
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Destroying books or records.
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Concealing assets or covering up sources of income .
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Handling one's affairs to avoid making the records usual in transactions
of the kind.
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Any conduct, the likely effect of which would be to mislead or to conceal.
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Attempt does not mean that one whose efforts are successful cannot commit
the crime of willful attempt. The crime is complete when the attempt is made
and nothing is added to its criminality by success or consummation, as would
be the case with respect to attempted murder. It has been held that "attempts
cover both successful and unsuccessful endeavors or efforts." As the courts
have stated, "The real character of the offense lies, not in the failure
to file a return or in the filing of a false return, but rather in the attempt"
to evade any tax.
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It is well settled that a separate offense may be committed with respect
to each year. Therefore, an attempt for 1 year is a separate offense from
an attempt for a different year.
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There may also be more than one violation in one year resulting from the
same acts such as the willful attempt to evade the payment of tax and the
willful attempt to evade tax. Likewise, there may be charged a willful attempt
to evade tax and a willful failure to file a return for the same year.
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In an attempt to evade or defeat the payment of any tax, the mere failure
or willful failure to pay any tax does not constitute an attempt to evade
or defeat the payment of any tax. The comments set out above with respect
to attempts also apply to this offense. The attempt implies some affirmative
action or the commission of some overt act. Examples of such action or conduct
relating to the attempted evasion of the payment of the tax are found in
the Giglio case. These are:
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Concealing assets.
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Reporting income through others.
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Misappropriating, converting, and diverting corporate assets.
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Filing late returns.
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Failing to withhold taxes as required by law.
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Filing false declarations of estimated taxes.
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Filing false tentative corporate returns.
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The attempt in any manner to evade or defeat any tax must be willful. Willfulness
has been defined as an act or conduct done with a bad or evil purpose. Mere
understatement of income and the filing of an incorrect return does not in
itself constitute willful attempted tax evasion. The offense is made out
when conduct such as exemplified in the Spies case (supra) is present.
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Courts have held that disbursement of available funds to creditors other
than the government , or to corporate stockholders is not of itself an attempt
to evade or defeat payment of taxes.
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This definition of willfulness applies to all Title 26 offenses where willfulness
is an element, unless stated otherwise.
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[9.1]
3.3.3 (07-29-1998)
IRC 7202. Willful Failure to Collect or Pay Over Tax
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IRC 7202 states; "Any person required under this title to collect, account
for, and pay over any tax imposed by this title who willfully fails to collect
or truthfully account for and pay over such tax shall, in addition to other
penalties provided by law, be guilty of a felony and, upon conviction thereof,
shall be fined not more than $10,000, or imprisoned not more than 5 years,
or both, together with the costs of prosecution."
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Violations under this section usually involve failure to truthfully account
for and pay over withholding, social security, and excise taxes with the
exception of wagering excise taxes. Failure to file returns would involve
violations of IRC 7203 and filing false and fraudulent returns would constitute
violations under IRC 7201.
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The elements of a criminal violation under this Code section are:
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Either a duty to collect any tax or a duty to account for and pay over any
tax or both.
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Either failure to collect any tax or failure to truthfully account for and
pay over any tax or both.
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Willfulness. (The subject of willfulness is covered above in 3.3.2.2.3.)
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Willful failure to truthfully account for and pay over is considered to be
an inseparable dual obligation. (Chief Counsel memo, 5-8-64, CC:E-172.) Failure
to pay, even though an accounting is made in the sense of a return filed,
leaves the duty as a whole unfulfilled. Section 406.603, Code of Federal
Regulations, states, "The return shall be signed and verified by...the President,
Vice-President, or other principal officer, if the employer is a corporation."
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However, considerable difficulty has been encountered in determining the
person charged with the duty of collecting, accounting for and paying over
taxes, especially in cases involving small corporations where the precise
duties of the officers are not clearly defined or rigidly carried out. For
example, in one case, it was determined that although the president of the
corporation was the dominating force in the management of the firm, the fact
that there were other officers who signed some returns and engaged in financial
activities on behalf of the corporation made it doubtful whether the president
was the officer under a duty to perform the required acts, and the indictment
was dismissed. Another case held that the term "person" includes a chief
executive officer of a corporation who possesses the authority to determine
how corporate funds should be expended. Accordingly, it is imperative to
ascertain the various activities and responsibilities of all officers of
a corporation before recommending prosecution against any one of them as
the "person" defined in IRC 7343.
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Willfulness under this Code section refers to motive or purpose and includes
some element of an evil motive and want of justification in view of all the
financial circumstances of the taxpayer. It is not enough merely to prove
that the acts were knowingly and intentionally committed. For example, a
successful prosecution under this section was based upon the following facts:
The taxpayer filed timely employment tax returns but habitually failed to
pay the amount of tax shown to be due thereon. He willingly signed agreements
for partial payments, made the first payment, and then ignored further requests
for payments. When his bank accounts were levied upon, he closed the accounts
and made arrangements with his customers to receive future payments in cash.
All his assets were then transferred to the names of others. His only defense
was that he used the money withheld from his employees to meet current operating
expenses. An analysis of his bank accounts and records of personal expenditures
showed that, contrary to his contentions, a profit was realized from the
business in all years and funds were available to pay the taxes shown on
the returns.
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The courts have held in one case of IRC 7202 (Willful Failure To Collect
Or Pay Over Tax) that the statute of limitations is 6 years and in another
case that the statute of limitations is 3 years. The position of the Department
of Justice, Tax Division, is that the statute of limitations is 6 years,
as provided in IRC 6531(4).
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[9.1]
3.3.4 (07-29-1998)
IRC 7203. Willful Failure to File Return, Supply Information, or
Pay Tax
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IRC 7203 states; "Any person required under this title to pay any estimated
tax or tax, or required by this title or by regulations made under authority
thereof to make a return, keep any records, or supply any information, who
willfully fails to pay such estimated tax or tax, make such return, keep
such records, or supply such information, at the time or times required by
law or regulation shall, in addition to other penalties provide by law, be
guilty of a misdemeanor and, upon conviction thereof, shall be fined not
more than $25,000 ($100,000 in the case of a corporation), or imprisoned
not more than 1 year, or both, together with the costs of prosecution. In
the case of any person with respect to whom there is a failure to pay any
estimated tax, this section shall not apply to such person with respect to
such failure if there is no addition to tax under Section 6654 or 6655 with
respect to such failure. In the case of a willful violation of any provision
of section 6050I, the first sentence of this section, shall be applied by
substituting "felony" for "misdemeanor" and "5 years" for "1 year" ."
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While all part of the same statute, any one of the following violations at
the time or times required by law or regulation, is considered a separate
offense:
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Willful failure to make any type of required return.
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Willful failure to pay any estimated tax or tax.
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Willful failure to keep records.
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Willful failure to supply information.
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NOTE:
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After September 3, 1982, any taxpayer qualifying under an exception to the
civil penalty rules of IRC 6654 or 6655 will not be subject to criminal fine
or imprisonment for failing to file a declaration of estimated tax.
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NOTE:
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Section 6050I of the IRC requires any person involved in a trade or business
(except certain financial institutions) who receives more than $10,000 in
cash in one transaction or two or more related transactions to make a return
(i.e., file a Form 8300). Failure to file a form 8300 is prosecuted as a
felony under section 7203 of the IRC carrying a maximum sentence of not more
than 5 years imprisonment.
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The following elements of the offense must be established to sustain a conviction
of IRC 7203:
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A duty, as required by law or regulations, to make a return (pay a tax due
and owing, keep records, or supply information) for the year or period involved.
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Failure to fulfill the legal duty at the time required by law or
regulation.
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Willfulness. See section 3.3.2.2.3 of this Chapter.
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The following paragraphs give some additional information concerning the
elements as they pertain to specific situations.
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[9.1]
3.3.4.1.1 (07-29-1998)
A Duty to Make a Return (Pay a Tax Due and Owing, Keep Records, or Supply
Information)
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The general requirements for making a return are set forth in IRC 6012 to
6046. Persons liable under IRC 7203 include those described in IRC 7343 as
follows:
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"The term ``person'' as used in this chapter includes an officer or employee
of a corporation, or a member or employee of a partnership, who as such officer,
employee, or member is under a duty to perform the act in respect of which
the violation occurs."
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In corporate cases, the person responsible for filing corporate returns may
be any of several officials, and it will be a matter of fact to be developed
by competent evidence as to which one has the duty. This evidence may be
proof of signing past federal returns or any state returns, or it may be
in the corporate bylaws or minutes of directors' meetings.
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The general requirement or duty to keep records is provided for in IRC 6001.
However, the types of records kept by various individuals are not alike,
and neither the statute nor the regulations defines minimum standards for
specific transactions or for types of business. For example, a showing that
his returns were prepared from third-party records (banks, brokers, employers)
may obviate the necessity for a taxpayer to keep records. Examination procedures
provide for the service of a notice, Letter to Taxpayer Regarding Inadequate
Records (Form 7020 or 7021), and procedures to be followed where taxpayers
have failed to maintain proper records.
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The government must establish that a return was due within the time provided
by law or regulations and that there was a failure to file such return within
such time. The time within which a return must be filed has been held to
be the date set out in the Code or under regulations prescribed by the Secretary,
plus the last date covered in any extension of time granted by the Secretary
or the Secretary's delegate. The date when a return is due under the Code
or regulations varies, depending upon the type of tax involved or the type
of return required to be filed. Thus, individual income tax returns,
self-employment tax returns, and partnership returns made on the basis of
the calendar year shall be filed on or before the 15th day of April following
the close of the calendar year; or, if made on a fiscal year basis, the return
shall be filed on the 15th day of the 4th month following the close of the
fiscal year. (26 USC 6072(a)) Corporate returns for calendar years are due
on the 15th day of March; or, if on a fiscal year basis, returns are due
on the 15th day of the 3rd month following the close of the fiscal year (26
USC 6072(b)). IRC 6075 relates to the time for filing estate and gift tax
returns, and IRC 6071 and the regulations promulgated there under to the
time for filing excise tax returns and other forms of returns required under
the particular type of tax involved.
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In addition to showing that a return was due, the government must establish
that the person did not file a required return on the due date. Usually,
this is accomplished by proving that the defendant did not file a return
in the district of his or her legal residence or principal place of business
or service center.
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Willfulness means a voluntary, intentional, violation of a known legal duty.
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The government must establish willfulness in the failure to file a return.
However, as distinguished from willfulness in a tax evasion case, the government
need not prove a tax evasion motive. Willfulness denotes something "done
with a bad purpose, or done without justifiable excuse, or done stubbornly
or obstinately or perversely, or with bad motive." As applied to this offense,
willful means voluntary, purposeful, deliberate, and intentional, as
distinguished from accidental, inadvertent, or negligent; and the only bad
purpose or bad motive which the government must prove is the deliberate intention
not to file returns, which such person knew ought to have been filed, so
that the government would not know the extent of his or her liability.
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Although an additional tax due is not an essential element of the offense,
willfulness is difficult to establish without proof of a substantial tax
liability.
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When charging willful failure to pay tax, repeated failure to pay taxes,
coupled with large expenditures for luxuries when taxes were owing, may be
evidence of willfulness within the meaning of the statute.
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Willfulness will also be inferred if the concealment motive plays any part
of the failure to keep records. However, an important factor in the probability
of conviction in these cases may be a substantial deficiency attributable
to the failure to keep records. The Internal Revenue Manual Part 4, provides
for the service of a notice, Letter to Taxpayer Regarding Inadequate Records
(Form 7020 or 7021), and the procedure to be followed where taxpayers have
failed to maintain proper records. The deliberate, intentional, and utter
disregard of this notice with evil intent and a bad purpose may be deemed
a circumstance from which willfulness may be inferred.
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The willfulness required to be shown when charging willful failure to supply
information would be the deliberate and intentional withholding and failure
to supply the required information with the evil and bad purpose of concealing
income, property, or other required or requested information. For example,
the intentional and deliberate failure and refusal to furnish a schedule
of the partnership assets and liabilities as required on the partnership
return was held to be willful. Disclosure of such information revealed
considerable cash on hand.
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The statutory period of limitations for willful failure to file returns,
IRC 7203 (other than information returns), or to pay tax is 6 years. A 3-year
period of limitations applies to willful failure to file information returns
such as partnership returns, and to willful failure to keep records or supply
information. The statutory period of limitations for willful failure to file
a Form 8300 is 3 years.
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[9.1]
3.3.5 (07-29-1998)
IRC 7204. Fraudulent Statement or Failure to Make Statement to Employees
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This statute applies to withholding statements required of employers.
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"In lieu of any other penalty provided by law (except the penalty provided
by section 6674), any person required under the provisions of section 6051
to furnish a statement who willfully furnishes a false or fraudulent statement
or who willfully fails to furnish a statement in the manner, at the time,
and showing the information required under section 6051, or regulations
prescribed thereunder, shall, for each such offense, upon conviction thereof,
be fined not more than $1,000, or imprisoned not more than 1 year, or both."
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The elements of a criminal violation under this Code section are:
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A duty to deduct employment tax or to withhold income tax. (26 USC 3102(a),
3402(a))
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A duty to timely furnish to the employee a written statement showing specified
information concerning the deductions. (26 USC 6051)
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Furnishing a false or fraudulent statement to an employee, or the failure
to furnish a statement to an employee at the required time and in the required
manner,
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Willfulness. See section 3.3.2.2.3. of this Chapter.
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A successful prosecution under this Code section was based upon the following
facts. In order to attract and hold workers, a taxpayer put into effect a
scheme whereby actual weekly wages paid were recorded on regular weekly payroll
sheets, the sum total of which was deducted for income tax purposes. Individual
payroll sheets were also maintained for most of the employees, but the amounts
of gross wages shown on the sheets were understated to accommodate the employees
so that they would not have to report their entire wages for income tax purposes.
The tax withheld from the wages was based upon the understated figure. In
some instances, individual payroll sheets were not maintained for employees.
At the end of the year, the employees whose names were shown on individual
payroll sheets were furnished false and fraudulent withholding statements,
Forms W-2, based upon the false payroll sheets, and the employees whose names
did not appear on payroll sheets did not at any time receive withholding
statements. The failure to furnish withholding statements to some employees
and the furnishing of false and fraudulent statements to other employees
constitute separate violations under this Code section.
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[9.1]
3.3.6 (07-29-1998)
IRC 7205. Fraudulent Withholding Exemption Certificate or Failure to Supply
Information
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IRC 7205 states;
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(a) Withholding on Wages.
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"Any individual required to supply information to his employer under Section
3402 who willfully supplies false or fraudulent information, or who willfully
fails to supply information thereunder which would require an increase in
the tax to be withheld under Section 3402, shall in addition to any other
penalty provided by law, upon conviction thereof, be fined not more than
$1,000, or imprisoned not more than 1 year, or both."
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(b) Backup Withholding on Interest and Dividends.
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"If any individual willfully makes a false certification under paragraph
(1) or (2)(C) of section 3406(d), then such individual shall, in addition
to any other penalty provided by law, upon conviction thereof, be fined not
more than $1,000, or imprisoned not more than 1 year, or both."
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[9.1]
3.3.6.1 (07-29-1998)
Elements--
Fraudulent Withholding Exemption Certificate or Failure to Supply Information--
Withholding on Wages (IRC 7205(a))
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-
The elements of a criminal violation under this Code section are:
-
A duty to supply information to employer (26 USC 3402(f)(2))
-
Furnishing false or fraudulent information or failure to supply information
which would require an increase in tax to be withheld.
-
Willfulness. See section 3.3.2.2.3 of this Chapter.
-
The employee is required to notify his employer within 10 days of a change
in his withholding exemption status which would require an increase in tax
to be withheld. There is no penalty for failing to supply information which
would require a decrease in tax to be withheld, and a certificate is not
considered false or fraudulent if it contains information showing fewer
exemptions than the employee is entitled to claim.
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[9.1]
3.3.6.2 (07-29-1998)
Elements--False Certification or Affirmation about Interest or Dividends
(IRC 7205(b))
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-
This criminal provision applies to interest and dividend income. Generally,
they are not subject to the withholding tax. However, the Code provides a
system of backup withholding which applies when: the payee fails to provide
a taxpayer identification number (TIN); the IRS notifies the payor that the
payee's TIN is incorrect; the IRS notifies the payor that the payee is
underreporting interest and dividends; or the payee fails to certify to the
payor, when opening a new account after 1983, that he or she is not subject
to backup withholding. The elements of a criminal violation under this Code
section are:
-
Making false certification of affirmation on any statement required by a
payor who is attempting to satisfy certain dividend or interest information
reporting requirements, or;
-
Making a false certification about not being subject to backup withholding.
-
Willfulness. See section 3.3.2.2.3 of this Chapter.
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|
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-
A 3-year period of limitations is applicable (26 USC 6531), and the offense
is a misdemeanor.
-
In a case which involves furnishing false or fraudulent information, the
offense is committed and the period of limitations begins the date the document
is filed. No known reported case has stated whether willful failure to supply
information to an employer is a continuing offense for purposes of determining
the date from which the period of limitations is to run. The safe practice
is to assume that it is not continuing, and that the offense is committed
and statute begins to run on the date when it becomes a duty for the employee
to supply information, which he or she willfully fails to do. However, if
all other facts indicate that prosecution should be recommended for this
offense, the continuing offense theory may be employed.
-
In a case which involves furnishing false or fraudulent information about
interest or dividends, the offense is committed and the period of limitations
begins the date the document is filed.
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|
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-
IRC 7206 states;
-
"Any person who--"
-
"(1) Declaration Under Penalties of Perjury. Willfully makes
and subscribes any return, statement, or other document, which contains or
is verified by a written declaration that it is made under the penalties
of perjury, and which he does not believe to be true and correct as to every
material matter; or"
-
"(2) Aid or Assistance. Willfully aids or assists in, or procures,
counsels, or advises the preparation or presentation under, or in connection
with any matter arising under, the internal revenue laws, of a return, affidavit,
claim, or other document, which is fraudulent or is false as to any material
matter, whether or not such falsity or fraud is with the knowledge or consent
of the person authorized or required to present such return, affidavit, claim,
or document; or"
-
"(3) Fraudulent Bonds, Permits, and Entries. Simulates or falsely
or fraudulently executes or signs any bond, permit, entry, or other document
required by the provisions of the internal revenue laws, or by any regulation
made in pursuance thereof, or procures the same to be falsely or fraudulently
executed, or advises, aids in, or connives at such execution thereof; or"
-
"(4) Removal or Concealment With Intent to Defraud. Removes,
deposits, or conceals, or is concerned in removing, depositing, or concealing,
any goods or commodities for or in respect whereof any tax is or shall be
imposed, or any property upon which levy is authorized by section 6331, with
intent to evade or defeat the assessment or collection of any tax imposed
by this title; or"
-
"(5) Compromises and Closing Agreements. In connection with any
compromise under section 7122, or offer of such compromise, or in connection
with any closing agreement under section 7121, or offer to enter into any
such agreement, willfully--"
-
"(A) concealment of property. Conceals from any officer or employee
of the United States any property belonging to the estate of a taxpayer or
other person liable in respect of the tax, or"
-
"(B) Withholding, falsifying, and destroying records. Receives, withholds,
destroys, mutilates, or falsifies any book, document, or record, or makes
any false statement, relating to the estate or financial condition of the
taxpayer or other person liable in respect of the tax;"
-
"shall be guilty of a felony and, upon conviction thereof, shall be fined
not more than $100,000 ($500,000 in the case of a corporation) or imprisoned
not more than 3 years, or both, together with the costs of prosecution."
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[9.1]
3.3.7.1 (07-29-1998)
Elements--False or Fraudulent Return, Statement, or Other Document Made
Under Penalty of Perjury (IRC 7206(1))
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-
A person who willfully makes and subscribes, under penalty of perjury, any
return, statement, or other document which he or she does not believe to
be true and correct, as to every material matter, commits a criminal offense.
The elements of a criminal violation under this Code section are:
-
Making and subscribing a return, statement or other document under penalty
of perjury.
-
Knowledge that it is not true and correct as to every material matter.
-
Willfulness. See section 3.3.2.2.3 of this Chapter.
-
This Code section imposes the penalty of perjury upon a person who willfully
falsifies a return as to a material matter, whether or not his or her purpose
was to evade or defeat the payment of taxes. Prosecution is appropriate when
the government is able to prove falsity of a partnership return, the issue
being falsity rather than evasion.
-
The test of materiality is whether the false statement was material to the
contents of the return. It is not necessary that the government actually
rely on the statement. It is sufficient that it be made with the intention
of inducing such reliance.
-
Although the offense is complete upon signing the statement or document,
prosecutions under this Code section should involve only false returns or
statements presented to or filed with the IRS. This sanction is appropriate
when it is possible to prove falsity of a return but difficult to establish
evasion of an ascertainable amount of tax, or, when the falsification results
in a relatively small amount of tax evaded in relationship to the total tax
liability.
-
If an individual files a false and fraudulent return, it is possible for
him or her to incur criminal liability for attempting to defeat and evade
the payment of tax and for making a false and fraudulent statement under
the penalty of perjury even though both offenses relate to the same return
and the making of the false statement is an incidental step in the consummation
of the completed offense of attempting to defeat and evade taxes.
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[9.1]
3.3.7.2 (07-29-1998)
Elements--Aid or Assistance in Preparation or Presentation of False or
Fraudulent Return, Affidavit, Claim or Other (IRC
7206 (2))
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-
The elements of a criminal violation under this Code section are:
-
The defendant aided or assisted in, procured, counseled, or advised the
preparation or presentation of a document in connection with matters arising
under the internal revenue laws.
-
The document was false as to a material matter.
-
The act of the defendant was willful. See Section 3.3.2.2.3 of this Chapter.
-
The false document must be filed with the IRS in order for the crime to be
complete but pecuniary loss to the government is not necessary. Any impairment
of its governmental function is sufficient.
-
The crime is complete on the submission of the false document notwithstanding
the fact that had the defendant filed a different and truthful document,
the defendant or his principal might have been entitled to equivalent relief
or benefit.
-
Generally, income tax returns or partnership information returns are involved
but any document required or authorized to be filed can give rise to this
offense.
-
If two partners execute a false partnership return and file it, they may
each commit a criminal offense, but if there is evidence that only one of
the partners willfully aided, assisted, procured, counseled or advised in
the preparation or the presentation of such return, then only he or she could
be held liable for this offense.
-
The aiding and assisting in the preparation of a false return and the subscribing
of a false return are two separate offenses. A defendant can, therefore,
be prosecuted under IRC 7206(1) for subscribing a false return and under
this Code section for aiding and assisting in the preparation of the same
false return.
-
It is sufficient to establish that the defendant willfully and knowingly
prepared false and fraudulent income tax returns for another although the
fraud involved was without the knowledge and consent of the person required
to make the return. For example, in a case the defendants, who conducted
a "refund factory," interviewed taxpayers for 10 or 15 minutes and obtained
information which was written on worksheets. Signed blank income tax returns
were then obtained from the taxpayers and they were told the amounts of the
refunds allegedly due, but they were not furnished any of the details relative
to the deductions to be claimed on the returns, which were prepared at later
dates. At the trial the clients testified that they did not furnish the
defendants the information relating to deductions shown on their completed
returns and that the information was placed on the returns without their
knowledge or consent. On the other hand, if the taxpayers who testify against
the defendant are shown to have had knowledge that their returns were false,
resulting in fraud penalties or successful prosecutions, for evasion, the
defendant is entitled to have the court caution the jury to weigh accomplice
testimony carefully.
-
In all race track payoff cases, IRC 7206(2) should be used either as the
primary statutory provision or, at least, as a supplement to 18 USC 1001,
when prosecuting either the "ten percenter" or the true winner.
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[9.1]
3.3.7.3 (07-29-1998)
Elements--Removal or Concealment with Intent to Defraud (IRC 7206(4))
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-
The elements of a criminal violation under this Code section are:
-
Tax imposed on the property, or;
-
Property upon which tax is imposed or levy is authorized.
-
Removal or concealment.
-
With intent to evade or defeat assessment or collection of any tax.
-
Concealment under this Code section does not mean merely to secrete or hide
away, but includes also "to prevent the discovery or to withhold knowledge
of." Thus, it is not necessary for the government to prove a physical removal,
concealment or transfer from one place to another. A violation of this Code
section may be committed by making false book entries indicating transfer
of property rights.
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|
|
-
It is probable that the period of limitations for this offense is 3 years
(26 U.S.C. 6531).
|
[9.1]
3.3.8 (07-29-1998)
IRC 7207. Fraudulent Returns, Statements, or Other Documents
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-
IRC 7207 states;
-
"Any person who willfully delivers or discloses to the Secretary any list,
return, account, statement, or other document, known by him to be fraudulent
or to be false as to any material matter, shall be fined not more than $10,000
($50,000 in the case of a corporation), or imprisoned not more than 1 year,
or both. Any person required pursuant to subsection (b) of section 6047 or
pursuant to subsection (d) or (e) of section 6104 to furnish any information
to the Secretary or such other person who willfully furnishes to the Secretary
or such other person any information known by him to be fraudulent or to
be false as to any material matter shall be fined not more than $10,000 ($50,000
in the case of a corporation), or imprisoned not more than 1 year, or both."
-
Any person who willfully delivers or discloses to the Secretary any list,
return, account, statement, or other document, known by him to be fraudulent
or to be false as to any material matter, shall be fined not more than $10,000
($50,000 in the case of a corporation), or imprisoned not more than 1 year,
or both. Any person required pursuant to subsection (b) of section 6047 or
pursuant to subsection (d) or (e) of section 6104 to furnish any information
to the Secretary or such other person any information known by him to be
fraudulent or to be false as to any material matter shall be fined not more
than $10,000 ($50,000 in the case of a corporation), or imprisoned not more
than 1 year, or both.
-
As of September 28, 1976, the Department of Justice has modified its
long-standing policy of not authorizing prosecution under Section 7207. The
current policy allows for use of Section 7207 in cases commonly referred
to as altered-document-type cases whenever the computed tax deficiencies
are such as to be considered de minimus in relation to the circumstances
of the particular case under consideration and the means and methods utilized
in committing the offense are commensurate with charging a misdemeanor rather
than a felony. The policy otherwise remains unchanged in that Section 7207
is neither suitable nor appropriate in tax cases other than the
altered-document-type case. This modification is strictly limited to cases
arising out of presentation of false or altered documents by taxpayers in
response to requests for substantiation of claimed deductions during the
course of examination activity.
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|
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-
This offense relates primarily to counterfeiting, using or fraudulently removing
tax stamps. It is most occurs in the excise tax area. The full text of this
statute is not recorded here. See the IRC for the specifics concerning this
offense.
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|
|
-
This offense relates primarily to excise taxes. The full text of this statute
is not recorded here. See the IRC for the specifics concerning this offense.
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|
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-
IRC 7210 states;
-
"Any person who, being duly summoned to appear to testify, or to appear and
produce books, accounts, records, memoranda, or other papers, as required
under sections 6420(e)(2), 6421(g)(2), 6427 (j)(2), 7602, 7603, and 7604(b),
neglects to appear or to produce such books, accounts, records, memoranda,
or other papers, shall, upon conviction thereof, be fined not more than $1,000,
or imprisoned not more than 1 year, or both, together with costs of prosecution."
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[9.1]
3.3.12 (07-29-1998)
IRC 7211. False Statements to Purchasers or Lessees Relating to Tax
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-
IRC 7211 states;
-
"Whoever in connection with the sale or lease, or offer for sale or lease,
of any article, or for the purpose of making such sale or lease, makes any
statement, written or oral--"
-
(1) "intended or calculated to lead any person to believe that any
part of the price at which such article is sold or leased, or offered for
sale or lease, consists of a tax imposed under the authority of the United
States, or"
-
(2) "ascribing a particular part of such price to a tax imposed under
the authority of the United States,""knowing that such statement is false
or that the tax is not so great as the portion of such price ascribed to
such tax, shall be guilty of a misdemeanor and, upon conviction thereof,
shall be punished by a fine of not more than $1,000, or by imprisonment for
not more than 1 year, or both."
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[9.1]
3.3.13 (07-29-1998)
IRC 7212. Attempts to Interfere with Administration of Internal Revenue
Laws
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-
IRC 7212 states;
-
"Corrupt or Forcible Interference."
-
(a.) "Whoever corruptly or by force or threats of force (including
any threatening letter or communication) endeavors to intimidate or impede
any officer or employee of the United States acting in an official capacity
under this title, or in any other way corruptly or by force or threats of
force (including any threatening letter or communication) obstructs or impedes,
or endeavors to obstruct or impede, the due administration of this title,
shall, upon conviction thereof, be fined not more than $5,000, or imprisoned
not more than 3 years, or both, except that if the offense is committed only
by threats of force, the person convicted thereof shall be fined not more
than $3,000, or imprisoned not more than 1 year, or both. The term "threats
of force" , as used in this subsection, means threats of bodily harm to the
officer or employee of the United States or to a member of his family."
-
"Forcible Rescue of Seized Property."
-
(b.) "Any person who forcibly rescues or causes to be rescued any property
after it shall have been seized under this title, or shall attempt or endeavor
so to do, shall, excepting in cases otherwise provided for, for every such
offense, be fined not more than $500, or not more than double the value of
the property so rescued, whichever is the greater, or be imprisoned not more
than 2 years."
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|
|
-
The essential elements of this offense are:
-
That there is a forcible rescue or attempt to forcibly rescue.
-
That the property is under valid seizure under Title 26.
-
"Forcible" does not necessarily mean actual violence to the person of an
officer. It includes "threatening language, or conduct calculated and intended
to intimidate prudent, cautious, and ordinarily brave men and make them desist
from the performance of official duty from well-grounded apprehension of
serious bodily harm." The term, "threats of force," as used in this subsection,
means threats of bodily harm to the officer or employee of the United States
or to a member of his family. "It has been held that a forcible rescue, under
IRC 7212(b), includes the use of force against property, such as the breaking
of a bank window, the removal of the Service's seal on a safe deposit box,
and the removal of the box and its contents from the bank."
-
Cases interpreting forcible rescue under both IRC 7212(b) and 18 USC 2233
permit prosecution for rescuing or dispossessing, or attempting to rescue
or dispossess property of which the government has taken legal possession,
against a stranger as well as a former owner. To charge forcible rescue under
18 USC 2233 or IRC 7212, the taking by the government must have been made
with at least some semblance of authority, i.e., the seizure must be valid
on its face. It should be shown that the person retaking the property had
knowledge of the seizure or of the fact that the property is in the possession
of the government. A seizure valid on its face will generally support a rescue
conviction even if the seizure could be invalidated by court proceedings.
It is no defense that the person retaking claims to be the real owner and
that the property was seized by mistake. A person's remedy is judicial, not
self-help.
-
NOTE:
-
Title 18 section 2233 is also a forcible rescue statute that IRS has concurrent
jurisdiction with the Federal Bureau of Investigation (FBI). By present practice,
determination of whether an alleged forcible rescue is to be investigated
by the Criminal Investigation Division or the FBI depends on whether the
property was taken before or after it was adjudicated government property.
The elements of 18 USC 2233 are provided in the section on Title 18 statutes.
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[9.1]
3.3.14 (07-29-1998)
IRC 7215. Offenses with Respect to Collected Taxes
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-
IRC 7215 states;
-
(a) "Penalty."
-
"Any person who fails to comply with any provision of section 7512(b) shall,
in addition to any other penalties provided by law, be guilty of a misdemeanor,
and, upon conviction thereof, shall be fined not more than $5,000, or imprisoned
not more than one year; or both, together with the costs of prosecution."
-
(b) "Exceptions."
-
This section shall not apply--
-
"(1) to any person, if such person shows that there was reasonable doubt
as to (A) whether the law required collection or tax, or (B) who was required
by law to collect tax, and"
-
"(2) to any person, if such person shows that the failure to comply
with the provisions of section 7512(b) was due to circumstances beyond his
control."
-
"For purposes of paragraph (2), a lack of funds existing immediately after
the payment of wages (whether or not created by the payment of such wages)
shall not be considered to be circumstances beyond the control of a person."
-
It is a criminal offense to fail, after due notice (26 USC 7512), to collect
and deposit, in a special trust account for the United States, employment,
withholding, and certain excise taxes (Employment Taxes imposed by Subtitle
C and Miscellaneous Excise Taxes imposed by Chapter 33 which pertain to
Communications and Transportation of persons by air) and to keep the funds
in the account until payment over to the United States.
|
|
|
-
The elements of a criminal violation under this Code section are:
-
A duty to collect or a duty to account for and pay over employment taxes
or certain miscellaneous excise taxes.
-
Failure to collect or failure to truthfully account for and pay over employment
taxes or certain miscellaneous excise taxes.
-
Notice, delivered in hand, instructing the taxpayer to collect and deposit
employment taxes or certain miscellaneous excise taxes in a separate bank
account designated as a special fund in trust for the United States and to
keep the taxes so collected in the account until payment over to the United
States.
-
Once the taxpayer is in receipt of the notice, failure to collect or to deposit
or to keep the collected taxes in a special trust account until payment over
to the United States.
-
Absence of information showing that the person had reasonable doubt as to
whether the law required the collection of the tax, or that he or she had
reasonable doubt that he or she was the one who was required by law to collect
the tax; or absence of information showing that the failure to collect, deposit
and to keep the tax in a separate account was due to circumstances beyond
the control of the taxpayer.
-
In the case of a corporation, partnership, or trust, notice delivered in
hand to an officer, partner, or trustee is deemed to be notice delivered
in hand to the corporation, partnership, or trust and to all officers, partners,
trustees, and employees thereof.
-
A lack of funds immediately after the payment of wages (whether or not resulting
from the payment of wages) is not considered a circumstance beyond a person's
control. For example, if an employer received the required notice and had
gross payroll requirements of $1,000 with respect to which he or she was
required to withhold $100 of income tax and if he or she had on hand only
$900 and paid out the entire amount in wages, withholding nothing, the fact
that the net wages due equaled that amount would not relieve him or her of
the penalty imposed by this Code section. (Senate Committee on Finance Report
(No. 1182, 85th Congress) (Jan. 23, 1958) 3 U.S. Cong. News '58, Page 255.)
-
Circumstances causing a lack of funds after the payment of wages (but not
immediately after) which are considered beyond a taxpayer's control include:
theft, embezzlement, or destruction of the business by fire, flood, or other
casualty, occurring within the period before which the person was required
to deposit the funds; or the failure of the bank in which the person deposited
the funds prior to transferring them to the government's trust account. A
lack of funds due to the payment of creditors would not be considered such
a circumstance.
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[9.1]
3.3.15 (07-29-1998)
Other Criminal Statutes in the IRC within the Jurisdiction of CI
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-
See Exhibit 3-1 for the other criminal statutes within the Internal Revenue
Code. The text of these other statutes are not recorded here. See the IRC
for specifics concerning these offenses.
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[9.1] 3.4 (07-29-1998)
TITLE 18--
CRIMINAL PENALTIES APPLICABLE TO FRAUD AND MISCELLANEOUS INVESTIGATIONS
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-
The following sections of Title 18 apply to violations that are within the
jurisdiction of CI in connection with appropriate IRS-CI investigations.
|
|
|
-
Title 18 Section 2 states;
-
(a) "Whoever commits an offense against the United States, or aids,
abets, counsels, commands, induces, or procures its commission, is punishable
as a principal."
-
(b) "Whoever willfully causes an act to be done, which if directly
performed by him or another would be an offense against the United States,
is punishable as a principal."
-
NOTE:
-
This statute can only be used by CI when it relates to some other tax or
money laundering violation for which CI has jurisdiction.
-
An aider and abettor may be convicted even if the person who commits the
offense has not been indicted, tried or convicted. One who causes a criminal
act may be convicted even if the performer of the act is acquitted. While
conviction of the principal is not a prerequisite to the conviction of an
aider and abettor, the government must nevertheless establish beyond a reasonable
doubt that the alleged offense was committed by someone and that the person
charged as an aider and abettor assisted in the commission of the crime.
-
To aid and abet, a defendant must associate himself with a venture, whether
or not there is a conspiracy, and try to make it succeed. Thus, if the crime
of attempted tax evasion by the main defendant was based on alleged concealment
of his interest in, and income from, gambling clubs, his co-defendants could
be held guilty because they consciously were parties to the concealment by
pretending to be proprietors even if they did not actually share in the making
of false returns. A defendant need not be present physically to be guilty
as an aider and abettor in embezzlement. It is sufficient that he induced
or procured another to embezzle.
-
A principal is not liable for a crime committed by an agent solely because
of the relationship. He or she will be liable only if the act of the agent
is with his or her knowledge or consent, or he or she otherwise comes within
the provisions of section 2 of Title 18. The agent is criminally responsible
for his or her own actions.
-
A corporation may be convicted for criminal acts of its agents, under the
theory of respondeat superior, but criminal liability may be imposed on the
corporation only where its agent is acting within the scope of employment.
However, the officers themselves may also be criminally liable for these
same acts.
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|
-
Title 18 Section 3 states;
-
"Whoever, knowing that an offense against the United States has been committed,
receives, relieves, comforts or assists the offender in order to hinder or
prevent his apprehension, trial, or punishment, is an accessory after the
fact."
-
"Except as otherwise expressly provided by any Act of Congress, an accessory
after the fact shall be imprisoned not more than one-half the maximum term
of imprisonment or (notwithstanding section 3571) fined not more than one-half
the maximum fine prescribed for the punishment of the principal, or both;
or if the principal is punishable by life imprisonment or death, the accessory
shall be imprisoned not more than 15 years."
-
NOTE:
-
This statute can only be used by CI when it relates to some other tax or
money laundering violation for which CI has jurisdiction.
-
A principal becomes an accessory after the fact if, with knowledge of the
commission of a crime, he or she assists in preventing or hindering the
apprehension, trial, or punishment of the perpetrator.
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|
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-
Title 18 Section 4 states;
-
"Whoever, having knowledge of the actual commission of a felony cognizable
by a court of the United States, conceals and does not as soon as possible
make known the same to some judge or other person in civil or military authority
under the United States, shall be fined under this title or imprisoned not
more than three years, or both."
-
NOTE:
-
This statute can only be used by CI when it relates to some other tax or
money laundering violation for which CI has jurisdiction.
-
A person is guilty of misprision of felony if he or she has knowledge of
the actual commission of a felony, conceals it, and does not make this known
to a person in authority as soon as possible.
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[9.1]
3.4.4 (07-29-1998)
Section 111. Assaulting, Resisting, or Impeding Certain Officers or
Employees
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-
The provisions of IRC 7212, relating to Attempts to Interfere with Administration
of Internal Revenue Laws, are set forth in the previous section. This statute,
while effecting the work of CI, is primarily enforced by the Internal Security
function of IRS.
-
(a) In general.-- Whoever--
-
"(1) forcibly assaults, resists, opposes, impedes, intimidates, or
interferes with any person designated in section 1114 of this title while
engaged in or on account of the performance of his official duties; or"
-
"(2) forcibly assaults or intimidates any person who formerly served
as a person designated in section 1114 on account of the performance of official
duties during such person's term of service," shall, where the acts in violation
of this section constitute only simple assault, be fined under this title
or imprisoned not more than one year, or both, and in all other cases, be
fined under this title or imprisoned not more than three years, or both.
-
(b) Enhanced penalty.-- Whoever, in the commission of any acts described
in subsection (a), uses a deadly or dangerous weapon (including a weapon
intended to cause death or danger but that fails to do so by reason of a
defective component) or inflicts bodily injury, shall be fined under this
title or imprisoned not more than ten years, or both.
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[9.1]
3.4.5 (07-29-1998)
Section 115. Influencing, Impeding, or Retaliating Against a Federal Official
by Threatening or Injuring a Family Member
|
-
Title 18 Section 115 states;
-
(a)(1) "Whoever--"
-
"(A) assaults, kidnaps, or murders, or attempts to kidnap or murder,
or threatens to assault, kidnap or murder a member of the immediate family
of a United States official, a United States judge, a Federal law enforcement
officer, or an official whose killing would be a crime under section 1114
of this title; or"
-
"(B) threatens to assault, kidnap, or murder, a United States official,
a United States judge, a Federal law enforcement officer, or an official
whose killing would be a crime under such section,""with intent to impede,
intimidate, or interfere with such official, judge, or law enforcement officer
while engaged in the performance of official duties, or with intent to retaliate
against such official, judge, or law enforcement officer on account of the
performance of official duties, shall be punished as provided in subsection
(b)."
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(a)(2) "Whoever assaults, kidnaps, or murders, or attempts or conspires
to kidnap or murder, or threatens to assault, kidnap or murder any person
who formerly served as a person a member designated in paragraph (1) or a
member of the immediate family of any person who formerly served as a person
designated in paragraph (1), with intent to retaliate against such person
on account of the performance of official duties during the term of service
of such person, shall be punished as provided in subsection (b)."
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(b)(1) "An assault in violation of this section shall be punished as
provided in section 111 of this title."
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(b)(2) "A kidnapping or attempted kidnapping, or conspiracy to kidnap
in violation of this section shall be punished as provided in section 1201
of this title for the kidnapping, attempted kidnapping or conspiracy to kidnap
of a person described in section 1201(a)(5) of this title."
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(b)(3) "A murder or attempted murder in violation of this section shall
be punished as provided in sections 1111, 1113, and 1117 of this title."
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(b)(4) "A threat made in violation of this section shall be punished
by a fine under this title or imprisonment for a term of not more than five
years, or both, except that imprisonment for a threatened assault shall not
exceed three years."
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(c) "As used in this section, the term--"
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(c)(1) " ``Federal law enforcement officer'' means any officer,
agent, or employee of the United States authorized by law or by a Government
agency to engage in or supervise the prevention, detection, investigation,
or prosecution of any violation of Federal criminal law;"
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(c)(2) " ``immediate family member'' of an individual means--"
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"(A) his spouse, parent, brother or sister, child or person to whom
he stands in loco parentis;"
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"(B) any other person living in his household and related to him by
blood or marriage;"
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(c)(3) " ``United States judge'' means any judicial officer of
the United States, and includes a justice of the Supreme Court and a United
States magistrate; and"
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(c)(4) " ``United States official'' means the President,
President-elect, Vice President, Vice President-elect, a Member of Congress,
a member-elect of Congress, a member of the executive branch who is the head
of a department listed in 5 U.S.C. 101, or the Director of the Central
Intelligence Agency."
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(d) "This section shall not interfere with the investigative authority
of the United States Secret Service, as provided under sections 3056, 871,
and 879 of this title."
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[9.1]
3.4.6 (07-29-1998)
Section 201. Bribery of Public Officials and Witnesses
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Title 18 Section 201 states;
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"(a) For the purpose of this section--"
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(1) "the term "public official" means Member of Congress, Delegate,
or Resident Commissioner, either before or after such official has qualified,
or an officer or employee or person acting for or on behalf of the United
States, or any department, agency or branch of Government thereof, including
the District of Columbia, in any official function, under or by authority
of any such department, agency, or branch of Government, or a juror;"
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(a)(2) "the term ``person who has been selected to be a public official''
means any person who has been nominated or appointed to be a public official,
or has been officially informed that such person will be so nominated or
appointed; and"
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(a)(3) "the term ``official act'' means any decision or action on any
question, matter, cause, suit, proceeding or controversy, which may at any
time be pending, or which may by law be brought before any public official,
in such official's official capacity, or in such official's place of trust
or profit."
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"(b) Whoever--"
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(b)(1) "directly or indirectly, corruptly gives, offers or promises
anything of value to any public official or person who has been selected
to be a public official, or offers or promises any public official or any
person who has been selected to be a public official to give anything of
value to any other person or entity, with intent--"
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"(A) to influence any official act; or"
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"(B) to influence such public official or person who has been selected
to be a public official to commit or aid in committing, or collude in, or
allow, any fraud, or make opportunity for the commission of any fraud, on
the United States; or"
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"(C) to induce such public official or such person who has been selected
to be a public official to do or omit to do any act in violation of the lawful
duty of such official or person;"
-
(b)(2) "being a public official or person selected to be a public official,
directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees
to receive or accept anything of value personally or for any other person
or entity, in return for:"
-
"(A) being influenced in the performance of any official act;"
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"(B) being influenced to commit or aid in committing, or to collude
in, or allow, any fraud, or make opportunity for the commission of any fraud
on the United States; or"
-
"(C) being induced to do or omit to do any act in violation of the official
duty of such official or person;"
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(b)(3) "directly or indirectly, corruptly gives, offers, or promises
anything of value to any person, or offers or promises such person to give
anything of value to any other person or entity, with intent to influence
the testimony under oath or affirmation of such first--mentioned person as
a witness upon a trial, hearing, or other proceeding, before any court, any
committee of either House or both Houses of Congress, or any agency, commission,
or officer authorized by the laws of the United States to hear evidence or
take testimony, or with intent to influence such person to absent himself
therefrom;"
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(b)(4) "directly or indirectly, corruptly demands, seeks, receives,
accepts, or agrees to receive or accept anything of value personally or for
any other person or entity in return for being influenced in testimony under
oath or affirmation as a witness upon any such trial, hearing, or other
proceeding, or in return for absenting himself therefrom;""shall be fined
under this title or not more than three times the monetary equivalent of
the thing of value, whichever is greater, or imprisoned for not more than
fifteen years, or both, and may be disqualified from holding any office of
honor, trust, or profit under the United States."
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(c) "Whoever--"
-
(c)(1) "otherwise than as provided by law for the proper discharge
of official duty--"
-
"(A) directly or indirectly gives, offers, or promises anything of value
to any public official, former public official, or person selected to be
a public official, for or because of any official act performed or to be
performed by such public official, former public official, or person selected
to be a public official; or"
-
"(B) being a public official, former public official, or person selected
to be a public official, otherwise than as provided by law for the proper
discharge of official duty, directly or indirectly demands, seeks, receives,
accepts, or agrees to receive or accept anything of value personally for
or because of any official act performed or to be performed by such official
or person;"
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(c)(2) "directly or indirectly, gives, offers, or promises anything
of value to any person, for or because of the testimony under oath or affirmation
given or to be given by such person as a witness upon a trial, hearing, or
other proceeding, before any court, any committee of either House or both
Houses of Congress, or any agency, commission, or officer authorized by the
laws of the United States to hear evidence or take testimony, or for or because
of such person's absence therefrom;"
-
(c)(3) "directly or indirectly, demands, seeks, receives, accepts,
or agrees to receive or accept anything of value personally for or because
of the testimony under oath or affirmation given or to be given by such person
as a witness upon any such trial, hearing, or other proceeding, or for or
because of such person's absence therefrom;""shall be fined under this title
or imprisoned for not more than two years, or both."
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(d) "Paragraphs (3) and (4) of subsection (b) and paragraphs (2) and
(3) of subsection (c) shall not be construed to prohibit the payment or receipt
of witness fees provided by law, or the payment, by the party upon whose
behalf a witness is called and receipt by a witness, of the reasonable cost
of travel and subsistence incurred and the reasonable value of time lost
in attendance at any such trial, hearing, or proceeding, or in the case of
expert witnesses, a reasonable fee for time spent in the preparation of such
opinion, and in appearing and testifying."
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(e) "The offenses and penalties prescribed in this section are separate
from and in addition to those prescribed in sections 1503, 1504, and 1505
of this title."
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NOTE:
-
This statute can only be used by CI when it relates to some other tax or
money laundering violation for which CI has jurisdiction.
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Internal Revenue Manual
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Hndbk. 9.1 Chap. 3 Criminal Statutory Provisions and Common Law
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(07-29-1998)
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