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What Is Obstructive Conduct with IRS? - By John R. Bullis, CPA

Updated: Feb 21, 2023

IRS investigated Carlo Marinello’s activities for years 2004 through 2009.

In 2012 IRS charged him with violating several criminal tax statutes under Code Section 7212(a).

That Section makes it a felony to corruptly or by force obstruct or impede the due administration of the Internal Revenue Code.

IRS claimed Marinello failed to keep corporate books and records, failed to provide his tax accountant with complete and accurate information, destroyed business records, hid income and paid employees with cash.

The jury trial judge did not tell the jury that it had to find he knew he was under investigation and that he intended to corruptly interfere with the investigation. The jury convicted Marinello on all counts.

He appealed to the Second Circuit Court of Appeals. That court found the Section did not require awareness of a particular IRS action or investigation. Since other Circuit Courts found otherwise, Marinello petitioned it all to the U.S. Supreme Court. The U.S. Supreme Court does not agree to accept all of the appeals and only decides the cases it chooses to do.

IRS argued the Code Section did not require just a specific investigation, but included the routine work of the IRS, including the processing and review of tax returns.

The Supreme Court agreed with Mr. Marinello. It held the government must prove the taxpayer was aware of a pending tax proceeding like an audit or particular investigation, or if the taxpayer could reasonably foresee that such a proceeding would begin.

The basic question was whether Congress intended for the clause to include or applied to every administrative task IRS did. The court found the IRS’s broad reading of the Section was unwarranted when considered in the broader context of the Code. It doubted if a taxpayer who paid a babysitter in cash without withholding taxes or failed to keep receipts for every charitable donation would expect a felony prosecution for tax obstruction. The court said the IRS must show that the proceeding was pending or at least foreseeable when the taxpayer engaged in obstructive conduct.

It would be best to not rely on this decision to act like Mr. Marinello did. I’m surprised the court did not find he could have expected problems with IRS.

Did you hear “I took my son to his first major league baseball game. He said, “Why are all the players wearing their caps backward?”. Joe Hickman

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