14.
Tax Division Directive No. 128
(supersedes Directive No. 99) Charging Mail Fraud, Wire Fraud or Bank Fraud
Alone or as Predicate Offenses in Cases Involving Tax Administration
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Tax Division approval is required for any criminal charge if the
conduct at issue arises under the internal revenue laws, regardless of
the criminal statute(s) used to charge the defendant. Tax Division
authorization is required before charging mail fraud, wire fraud or
bank fraud alone or as the predicate to a RICO or money laundering
charge for any conduct arising under the internal revenue laws,
including any charge based on the submission of a document or
information to the IRS. Tax Division approval also is required for any
charge based on a state tax violation if the case involves parallel
federal tax violations.
The Tax Division may approve mail fraud, wire fraud or bank fraud
charges in tax-related cases involving schemes to defraud the
government or other persons if there was a large fraud loss or a
substantial pattern of conduct and there is a significant benefit to
bringing the charges instead of or in addition to Title 26 violations.
See generally United States Attorneys' Manual (U.S.A.M.)
§9-43.100. Absent unusual circumstances, however, the Tax
Division will not approve mail or wire fraud charges in cases involving
only one person's tax liability, or when all submissions to the IRS
were truthful.
Fraud charges should be considered if there is a significant
benefit at the charging stage (e.g., supporting forfeiture of
the proceeds of a fraud scheme; allowing the government to describe the
entire scheme in the indictment); at trial (e.g., ensuring that
the court will admit all relevant evidence of the scheme; permitting
flexibility in choosing witnesses); or at sentencing (e.g.,
ensuring that the court can order full restitution). See id.
§9-27.320(B)(3) ("If the evidence is available, it is proper
to consider the tactical advantages of bringing certain charges.").
For example, mail fraud (18 U.S.C. §1341) or wire fraud (18
U.S.C. §1343) charges may be appropriate if the target filed
multiple fraudulent returns seeking tax refunds using fictitious names,
or using the names of real taxpayers without their knowledge. Fraud
charges also may be considered if the target promoted a fraudulent tax
scheme.
Bank fraud charges (18 U.S.C. §1344) can be appropriate in
the case of a tax fraud scheme that victimized a financial institution.
Example: the defendant filed false claims for tax refund and induced a
financial institution to approve refund anticipation loans on the basis
of the fraudulent information submitted to the IRS.
Racketeering and Money Laundering Charges Based on Tax
Offenses
The Tax Division will not authorize the use of mail, wire or bank
fraud charges to convert routine tax prosecutions into RICO or money
laundering cases. The Tax Division will authorize prosecution of tax-
related RICO and money laundering offenses, however, when unusual
circumstances warrant it.
A United States Attorney who wishes to charge a RICO violation (18
U.S.C. §1962) in any criminal matter arising under the internal
revenue lawsincluding a predicate act based on a state tax
violation, in the case of a parallel federal tax violationmust
obtain the authorization of the Tax Division and the Criminal
Division's Organized Crime and Racketeering Section.
U.S.A.M. §9-110.101.
A United States Attorney who wishes to bring a money laundering
charge (18 U.S.C. §1956) based on conduct arising under the
internal revenue laws must obtain the authorization of the Tax Division
and, if necessary, the Criminal Division's Asset Forfeiture and Money
Laundering Section.
U.S.A.M. §9-105.300.
Date: October 29, 2004
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Eileen J. O'Connor
Assistant Attorney General
[Added September 2007]
[cited in USAM 6-4.210]
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