May 25, 2016
The U.S. Department of Justice’s filing of criminal charges against a Chicago restaurant owner who failed to pay state sales tax demonstrates the perils business owners face if they underreport their gross receipts to avoid paying sales tax. Hu Xiaojun, who owns and operates nine restaurants in the Chicago area, was charged with federal wire fraud and money laundering offenses arising from his failure to pay Illinois sales tax on nearly $10 million in cash transactions occurring at his restaurants over a four-year period. On May 16, 2016, Xiaojun pleaded guilty to one count of wire fraud and one count of money laundering. He faces a prison sentence of 41 to 51 months, and must pay restitution of over $1 million to the Illinois Department of Revenue as well as forfeit an additional amount as punishment for his misconduct. Sentencing is scheduled for Aug. 22, 2016.
The Offense Conduct
According to the publicly filed guilty plea agreement, between January 2010 and September 2014, Xiaojun failed to pay sales tax on transactions in which customers paid cash. To conceal cash sales, he instructed restaurant managers and employees to provide him with daily summaries of restaurant sales, which he would in turn alter to conceal cash sales. Xiaojun and others would destroy the daily summary reports and cash transactions receipts, replacing them with incorrect reports that omitted the bulk of each restaurant’s cash sales. To hide cash sales from the state tax authorities, the defendant instructed employees to withhold cash generated from the restaurants from the corporate bank accounts to avoid creating financial records for those cash sales. The defendant instead used the cash to pay restaurant employees and suppliers without recording those expenses in the corporate books and records. The defendant also deposited a portion of the cash into his personal bank account, which he then used to pay personal expenses.
During the 2010 to 2014 time period, the defendant instructed others to submit fraudulent sales figures to the Illinois Department of Revenue on monthly sales tax returns. Each month, the defendant directed his employees to provide false sales figures to his accountants, who in turn provided those figures to the state. In all, the defendant underreported his sales to the state by nearly $10 million, resulting in his underpayment of sales taxes by more than $1.1 million.
The wire fraud charge to which the defendant pleaded guilty is based upon his sending of an email containing false sales figures for the month of May 2014. The money laundering charge to which the defendant pleaded guilty is based upon a series of financial transactions that he conducted using proceeds of his scheme to defraud the Illinois Department of Revenue. Specifically, the defendant deposited over $72,000 in cash into his personal bank account, which he knew consisted of funds derived from cash sales at his restaurants that were concealed from the state tax authorities. The defendant thereafter withdrew $60,000 from that account and purchased an official bank check, which he then deposited into a different business account. The defendant used the funds in that second bank account to purchase a restaurant and equipment, which he subsequently operated.
At first glance, the facts of United States v. Xiaojun read like a typical criminal tax case and include the all-too-common attributes of tax fraud in the restaurant industry: the concealment of cash sales and the use of diverted cash to pay employees, purveyors and personal expenses of the restaurant’s owners. Indeed, the Justice Department’s website is replete with press releases announcing criminal tax charges against restaurant owners who engaged in conduct similar to that of Xiaojun, mostly commonly filing of false income tax returns in violation of 26 U.S.C. § 7206 or tax evasion in violation of 26 U.S.C. § 7201.
For example, in United States v. Happy Asker, the owner of a chain of pizza restaurants in the Detroit area engaged in what the government called “a systematic and pervasive tax fraud scheme to defraud the IRS” by substantially underreporting gross sales and payroll amounts on corporate income tax returns and employment tax returns filed for nearly 60 restaurant locations. Over a three-year period, the defendant and his co-conspirators diverted for personal use more than $6.1 million in cash gross receipts and failed to report approximately $3.84 million of gross income and pay approximately $2.39 million in payroll taxes. A portion of the unreported income was shared among the defendant and most of his franchise owners, in a weekly cash “profit split.” As a result of this conduct, the defendant was charged with, and later convicted of, typical Title 26 offenses: filing false personal income tax returns, aiding and assisting in the filing of false corporate income and employment tax returns for several pizza restaurants, and obstructing and impeding the administration of the Internal Revenue Code.
In another fairly typical case, United States v. Ramon S. Arias, the defendant owned numerous Little Caesars pizza franchises in Alabama, Georgia and Louisiana. In a written plea agreement, the defendant admitted that between 2010 and 2013, he “skimmed” hundreds of thousands of dollars of cash from his restaurants and concealed these cash receipts from his accountant. As a result, the S corporation tax returns underreported gross receipts from the restaurants, and those omissions flowed through to the defendant’s personal income tax returns. The defendant pleaded guilty to one count of filing a false 2013 personal income tax return in violation of 26 U.S.C. § 7206(1) and agreed to pay restitution to the Internal Revenue Service for the years 2010 through 2013.
What makes United States v. Xiaojun notable is that the Justice Department chose not to assert a single federal tax charge against the defendant. Based upon admissions in his plea agreement, the defendant presumably failed to report as taxable income the concealed cash receipts, thereby likely exposing him to multiple federal income tax charges during the five tax years at issue (2010 through 2014). In addition, the defendant’s payment of his employees in cash presumably could have led to employment tax-related charges. But instead of charging Title 26 offenses, the government transformed this garden-variety criminal tax case into a wire fraud and money laundering case by focusing on the defendant’s failure to pay state sales taxes.
Tax Division Directive No. 128
The government’s case against Xiaojun appears to be premised upon a relatively obscure Justice Department policy entitled Tax Directive No. 128, “Charging Mail Fraud, Wire Fraud or Bank Fraud Alone or as Predicate Offenses in Cases Involving Tax Administration.” This directive provides federal prosecutors with significantly expanded authority to use the mail and wire fraud statutes to charge additional crimes, and seek correspondingly increased penalties, in tax-related cases. Under a preceding policy, prosecutors were generally not permitted to use the fraud statutes where the use of the mails or wires was only incidental to a violation arising under the Internal Revenue laws.
Under Tax Directive No. 128, prosecutors may now use mail and wire fraud offenses and, more importantly, state tax violations where the mails or wire communication facilities are used, to transform cases that traditionally would be prosecuted under the tax laws into fraud and money laundering prosecutions. By charging mail and wire fraud in tax cases, the government can significantly change the charging and plea bargaining process. The mere threat of a mail fraud or money laundering charge may well cause targets of government investigations to plead guilty more willingly, and to agree to cooperate against other targets, than would have been likely under the prior policy where the charges were likely limited to federal tax offenses absent exceptional circumstances. In addition, the ability to include mail or wire fraud charges in a tax-related case provides prosecutors with an additional tool not previously available in traditional tax cases — the ability to seek forfeiture of the proceeds of the fraudulent scheme.
By relying upon the authority conferred by Tax Directive No. 128, the government could significantly ratchet up the pressure on the defendant in United States v. Xiaojun. By bringing charges under Title 18 rather than Title 26, the government was able to seek a longer prison sentence: the statutory maximum sentences available for mail fraud and money laundering, 20 years each, are significantly higher than the statutory maximum sentences available for tax fraud or tax evasion, which are three years and five years, respectively. In addition, the United States Sentencing Guidelines for mail fraud and money laundering crimes typically call for longer sentences than those applicable to tax offenses.
Charging mail fraud and money laundering also enabled the government to seek restitution to be paid to the state agency that was defrauded. Had the government only charged federal tax crimes under Title 26, restitution could only have been ordered to the Internal Revenue Service, as occurred in United States v. Asker and United States v. Arias. The government was also able to seek forfeiture of the funds that constitute proceeds of the mail fraud and money laundering offenses, an additional punishment that is not available for tax offenses. As part of his plea agreement, Xiaojun agreed to pay at least $1 million in restitution to the Illinois Department of Revenue and to entry of a forfeiture judgment in an amount to be determined by the court at sentencing. The defendant also agreed as part of his plea agreement to cooperate with the civil tax audit that will inevitably follow his conviction, thereby ensuring that the IRS will be able to assess any tax, interest and penalties that are determined to be due and owing.
United States v. Xiaojun illustrates well how Tax Directive No. 128 provides federal prosecutors with significantly more leeway in charging offenses in what are viewed as traditional tax cases. No longer confined to the criminal offenses enumerated in Title 26, federal prosecutors can significantly increase the pressure on defendants by charging mail fraud and money laundering, seeking longer sentences and extracting substantial financial penalties by requiring defendants to pay both restitution and forfeiture.
 See United States v. Hu Xiaojun, No. 16-cr-316 (N.D. Ill.).
 See U.S. Department of Justice Press Release, “Happy’s Pizza Founder Convicted of Multi-Million Dollar Tax Fraud Scheme” (Nov. 19, 2014).
 See U.S. Department of Justice Press Release, “Owner of Pizza Franchises Pleads Guilty to Submitting False Tax Return That Omitted Income From Skimmed Cash” (May 24, 2016).