FATCA Update: Brazil Signs IGA with U.S. and Treasury Releases More Guidance

Treasury logoOn September 24, 2014, the government of Brazil announced it had signed an intergovernmental agreement with the United States as part of its adoption of the requirements of the Foreign Account Tax Compliance Act (FATCA). The agreement was signed on September 23 by Finance Minister Guido Mantega and U.S. Ambassador Liliana Ayalde. The Brazil-U.S. IGA is reciprocal, meaning that information on U.S. taxpayers residing in Brazil will be sent by Brazilian financial institutions to Brazil’s federal tax department, which will then pass on the information to the U.S. Internal Revenue Service, and the IRS will provide Brazilian tax authorities with financial information on Brazilian taxpayers living in the U.S. This brings the total number of IGAs reached – either signed agreements or in substance – to over 100. (A list of all IGAs is available on Treasury’s website here.)

In related developments, the IRS updated its FATCA FAQs to address whether a nonreporting FFI under a Model 1 IGA is required to register and obtain a GIIN, and under what circumstances FFIs in IGA countries may use substitute Forms W-8. (The updated FAQs are available on the IRS website here.)

Finally, the IRS is updating Form 1099 to address FATCA reporting.  Newly issued Form 1099 instructions provide as follows:  “Beginning in 2014, an FFI with a chapter 4 requirement to report a U.S. account maintained by the FFI that is held by a specified U.S. person may satisfy this requirement by reporting on Form(s)1099 under the election described in Regulations section 1.1471-4(d)(5)(i) (A). Additionally, a U.S. payor may satisfy its chapter 4 requirement to report such a U.S. account by reporting on Form(s) 1099. See Regulations section 1.1471-4(d)(2)(iii)(A). Form 1099-MISC is among the Forms 1099 used for such purpose. A new check box was added to Form 1099-MISC to identify an FFI filing this form to satisfy its chapter 4 reporting requirement.”  (The new instructions can be found here, here, and here.)

FATCA became effective on July 1, 2014.

Lessons from The Situation: Pay your Taxes and Do Not Alter your Accounting Records

Reality stars being charged with tax evasion is always surprising, because not only does the whole television audience see you making money, but the government does, too. The first notable instance was the first winner of the CBS reality show Survivor, Richard Hatch, who was accused of not paying taxes on his million dollar prize and was later found guilty of filing a false tax return (among other crimes) for the year he won the competition.

Another reality star, Michael Sorrentino (aka “The Situation”), formerly of MTV’s Jersey Shore, now finds himself in a similar situation. Yesterday, Mr. Sorrentino and his brother, Marc Sorrentino, were indicted by a federal grand jury in New Jersey for filing false tax returns for 2010 and 2012, as well as conspiracy to defraud the United States. “The Situation” was also charged with failure to file a tax return for 2011. The Sorrentinos allegedly failed to report over $8.9 million earned through promotional and other activities, including publishing a comic book (featuring The Situation as a superhero, of course), owning a vodka company, and endorsing products such as vitamins and sunglasses. (See Indictment here). The Situation also allegedly improperly claimed deductions for business expenses that were really for personal use, including “personal grooming expenses.” U.S. Attorney Paul J. Fishman released this statement yesterday:

According to the indictment, Michael and Marc Sorrentino filed false tax returns that incorrectly reported millions made from promotions and appearances. The brothers allegedly also claimed costly clothes and cars as business expenses and funneled company money into personal accounts. The law is absolutely clear: telling the truth to the IRS is not optional.

(See Press Release here). Telling the truth to your accountant is not optional, either. According to the Indictment, the Sorrentino brothers allegedly provided their (unnamed) accounting firm with false information. In addition, the Indictment alleges that after the accounting firm received a grand jury subpoena for its QuickBooks software that contained the Sorrentinos’ books and records for 2012, entries in the software were “altered” whereby certain taxable payments were “reclassified” as non-taxable payments. It is not clear from the Indictment who directed that those changes be made, but the IRS obviously discovered the “reclassifications” during the criminal investigation, and the act of altering corporate book and records to cover up a crime almost certainly influenced the decision to prosecute in this case.

Recent Sentences for Federal Tax Crimes in 2014 – Part 3

Today we conclude our review of recent sentences imposed in federal tax crime cases in 2014. In our two previous posts here and here, we reviewed sentences relating to Foreign Bank Account, Tax Evasion, Employment Tax, False Tax Returns, and Tax Return Preparer crimes. In this post, we review sentences imposed for crimes for Returns Submitted via Identity Theft. Merely based upon the number of sentences detailed here, you can easily see how this area of the law has become a focus for the Justice Department.

Returns Submitted via Identity Theft

As the leader of a multi-state fraud conspiracy based in Alabama, Christopher Davis had pleaded guilty to conspiracy to defraud the U.S., wire fraud, and aggravated identity theft. Mr. Davis and co-conspirator Kenneth Blackmon would utilize personal identifying information, obtained from a number of sources, including from an Alabama medical facility, to file false tax returns that claimed refunds. Mr. Davis would receive the refunds from the IRS on prepaid debit cards and then direct runners to travel to Georgia and South Carolina to make cash withdrawals using the debit cards and return the cash to Mr. Davis. At one point, Mr. Davis had over 600 stolen identities and 200 prepaid debit cards. Mr. Davis was sentenced to 60 months in prison and was ordered to forfeit over $300,000. [DOJ press release here].

Another ringleader of a tax refund conspiracy run out of a Bronx apartment from 2011 to 2012, Jose Angel Quilestorres (a/k/a Carlos Jose) had pleaded guilty to several counts, including making a false claim, aggravated identity theft, and conspiracy to defraud the government. The tax refund fraud mill operated by Mr. Quilestorres caused false tax returns to be filed utilized personal identifying information from individuals living in Puerto Rico, who are issued Social Security Numbers but do not have to pay income tax unless they receive income from a U.S. company or the U.S. government. Using more than 8,000 stolen identities, Mr. Quilestorres obtained the fraudulent refund checks sometimes by bribing mail carriers to intercept the checks and deliver them to at least a dozen other individuals who were involved in this scheme. Mr. Quilestorres was sentenced to nine years in prison and ordered to pay $10.1 million in restitution. [Quilestorres complaint found here].

David Haigler, of Alabama, had pleaded guilty for a stolen identity tax refund fraud scheme. He had obtained 263 tax refund checks totaling over $600,000, obtained fictitious powers of attorneys for the individuals named on the checks, and then cashed the checks. He paid a portion of the proceeds to those who provided him with the fraudulent checks. Mr. Haigler was sentenced to 37 months in prison and three years of supervised release and ordered to pay $606,781 in restitution. [DOJ press release here].

Noemi Rubio Baez, of California, had pleaded guilty to having conspired in a scheme from 2008 to 2012 to electronically filing false tax returns using false income information and falsely claiming refunds through false tax credits. She had also pleaded guilty for aggravated identity theft because some of the filers had been unaware that she had filed returns using their names. Ms. Baez was sentenced to 30 months in prison and three years of supervised release and ordered to pay $703,536.86 in restitution. [DOJ press release here].

Former Alabama bank teller LaQuanta Clayton had pleaded guilty to crimes related to her opening five bank accounts in the names of another individual, without his knowledge, in order to receive fraudulent tax refunds. She then made withdrawals for the refund amounts and provided them to others who were involved in a larger scheme of submitting false returns for fraudulent refunds. Ms. Clayton was sentenced to 21 months in prison and three years of supervised release and ordered to pay $185,730 in restitution. [DOJ press release here].

An Alabama husband, wife, and son, Christian Young, Mary Young, and Octavious Reeves, had pleaded guilty to conspiring to obtain stolen identities in order to file false tax returns claiming refunds that were issued on prepaid debit cards, which proceeds, totaling over $400,000, were withdrawn by the family. All received sentences that included imprisonment – Ms. Young for 87 months, Mr. Young for 70 months, and Mr. Reeves for 51 months – and three years of supervised release. Mr. and Ms. Young were ordered to pay over $400,000 in restitution. Mr. Reeves was ordered to pay $42,257 in restitution. [DOJ press release here].

Ricky Lee Greenwood, of Oregon, had pleaded guilty to aggravated identity theft, wire fraud, and filing a false return. He had filed at least 66 false returns using fictitious wage and dependent information, including of unemployed individuals, in order to maximize credits to claim false refunds. Mr. Greenwood was sentenced to 40 months in prison and three years of supervised release and ordered to pay $296,106 in restitution. [DOJ press release here].

Virginia Parks-Bert, of Virginia, had pleaded guilty to defraud the government and aggravated identity theft. She had false returns for herself and others that contained false wage and tax withholding information in order to obtain false refunds, intentionally in small amounts so as to avoid IRS detection. Ms. Parks-Bert was sentenced to 42 months in prison and three years of supervised release and ordered to pay over $135,000 in restitution. [DOJ press release here].