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  • Daniel Layton
  • January 10, 2019 01:36:39 AM
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A Little About Us

Newport Beach tax attorney Daniel Layton defends Orange County clients in IRS and FTB audits & collections, criminal tax defense, tax fraud & evasion cases, FBAR penalty defense, and foreign account disclosures (e.g., streamlined procedures).

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    What Is the Standard for Admission of Evidence in a Hearing on Revocation of Probation or Supervised Release?

    What Is the Standard for Admission of Evidence in a Hearing on Revocation of Supervised Release or Probation? Because the Federal Rules of Evidence do not […] The post What Is the Standard for Admission of Evidence in a Hearing on Revocation of Probation or Supervised Release? appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel...

    What Is the Standard for Admission of Evidence in a Hearing on Revocation of Supervised Release or Probation?

    Because the Federal Rules of Evidence do not apply in proceedings for revocation of supervised release revocation or revocation of probation, the standard for admitting evidence for the judge to consider is lower than in a regular trial.

    “Supervised release revocation hearings are not criminal prosecutions….” U.S. v. Kelley, 446 F.3d 688, 689 (7th Cir. 2006). “Consequently, the full panoply of rights that the Constitution guarantees to criminal defendants does not extend to individuals who are the subject of revocation proceedings.” U.S. v. Neal, 512 f.3d 427, 435 (7th Cir. 2008). “[T]here is no though to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.” Morrissey v. Brewer, 408 U.S. 471, 489 92 S. Ct 2593, 2604 (1972).

    The Federal Rules of Evidence do not apply in “[p]roceedings for… granting or revoking probation….” Fed. R. Evid. 1101(d)(3); See, also, United States v. Hall, 419 F.3d 980, 986 (9th Cir. 2005) (the Rules of Evidence “do not strictly apply to revocation hearings.”). The exclusion also extends to proceedings for the revocation of supervised release. United States v. Walker, 117 F.3d 417, 420 (9th Cir. 1997) (agreeing with the rationale of United States v. Frazier, 26 F.3d 110, 113 (11th Cir. 1994)(“…Congress considered probation revocation and supervised release revocation to be so analogous as to be interchangeable.”). Therefore, hearsay testimony and unauthenticated documents may be admissible. See, e.g., U.S. v. Miller, 514 F.2d 41, 42-43 (9th Cir. 1975); U.S. v. Pratt, 52 F.3d 671, 675 (7th Cir. 1995), cert. denied 516 U.S. 881, 116 S. Ct. 216 (1995). Similarly, otherwise excludable evidence is also admissible. See Herbert v. United States, 201 F.3d 1103, 1004 (9th Cir. 1999) (exclusionary rule does not apply); United States v. Verduzco, 330 F.3d 1182, 1185 (9th Cir. 2003) (ban on use of nolo contendere plea in Fed. R. Crim. P. 11 does not apply in supervised release revocation hearings).

    Crawford does not create a Sixth Amendment right of confrontation applicable to supervised release revocation or similar proceedings.” Hall, 419 F.3d 989 (referring to Crawford v. Washington, 511 U.S. 36, 124 S. Ct. 1354 (2004). “ Still, the hearings must comport with the protections afforded to defendants by the due process requirements of the Fourteenth Amendment to the Constitution. Morrissey, 408 U.S. at 489. These protections including notice, an opportunity to be heard and present witnesses and evidence, the right to confront an adverse witness unless there is good cause otherwise, a neutral and detached hearing body, and a written statement by fact-finders as to the basis for revocation. Id. Keeping in mind, however, the flexibility to consider letters, affidavits, and other material not usually admissible criminal trial. Id.; Miller, 514 F.2d at 42-43; Pratt, 52 F.3d at 676.

    Where hearsay not subject to an exception is to be submitted as evidence, the Court should employ, on the record, “a process of balancing the defendant’s interest in confrontation against the Government’s good cause for denying it.” U.S. v. Martin, 984 F.2d 308, 310 (9th Cir. 1993) (citing U.S. v. Simmons, 812 F.2d 561, 564 (9th Cir. 1987)); see, also, Hall, 419 F.3d at 986. The defendant’s interest in confrontation is weighed by looking at the importance of the evidence to the ultimate finding. Martin, 984 F.2d at 311. “Good cause” is weighed by “look[ing] to both the ‘difficulty and expense of procuring witnesses’ and the ‘traditional indicia of reliability’ borne by the evidence.” Id. At 313 (internal citations omitted) (citing Gagnon v. Scarpelli,411 U.S. 778, 782 n. 5, 93 S. Ct. 1756, 1760 n. 5 (1973), and Simmons, 812 F.2d at 564).

    Where a party is concerned with the difficulty and expense of procuring witnesses, a court may consider whether the conventional substitutes for live testimony, including affidavits and documentary evidence, may be appropriate. Gagnon, 411 U.S. at 782 n. 5; see Martin, 984 F.2d at 313 (dismissing the difficulty and expense factor for government’s failure to provide a substitute).

    As to the second consideration for determining “good cause,” courts have looked at indicia of reliability, such as details contained in the statements and corroborating evidence. See, e.g., Hall, 419 F.3d 988-989 (hearsay statement to police admissible because corroborated by facts); Miller, 514 F.2d at 42 (unauthenticated state court files and a state probation report were admissible because the U.S. Probation Officer testified that he made xerox copies and obtained the additional information from the court files); Simmons, 812 F.2d at 564-565 (not plain error for the district court to admit authenticated hospital records prepared by the defendant’s physician over a hearsay objection); Walker, 117 F.3d at 420-421 (hearsay testimony of one probation officer about records kept by another probation officer was sufficiently reliable).

    For these reasons, the lower standard can cut both ways, in favor of a defendant or the government.

    Daniel W. Layton, the author of this post, is a former federal prosecutor and former IRS attorney, who founded a tax litigation practice representing individuals and businesses in Newport Beach, California.

    Posted on 09/03/2019 by Daniel Layton.

    The post What Is the Standard for Admission of Evidence in a Hearing on Revocation of Probation or Supervised Release? appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel Layton.


    Murrieta Tax Preparer Gets No Jail Sentence for Tax Crime

    A Murrieta return preparer is reported by patch.com (here) to have received a sentence of home detention, probation, and community service, although the sentencing guidelines provided […] The post Murrieta Tax Preparer Gets No Jail Sentence for Tax Crime appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel...

    A Murrieta return preparer is reported by patch.com (here) to have received a sentence of home detention, probation, and community service, although the sentencing guidelines provided for up to 6 years in prison. Per reports, the refunds falsely claimed caused at least $175,000 in tax loss, but could have been almost $3 million. Unsurprisingly, I could not locate a DOJ press release on this sentence. The totality of the factors the U.S. District Court Judge, Hon. Dolly Gee, considered in issuing the sentence are not in the article, although it noted that he submitted to a plea agreement and had no prior felony convictions.

    Per the article:

    In one case cited in documents filed in Los Angeles federal court, a client was identified as a consultant to a non-existent business called Video Tech, showing losses for 2011 and 2012. However, the woman disavowed any knowledge of the consultancy or McCall’s use of Video Tech on her return.

    One could speculate that the judge did not find this fact as very convincing, as it is hard to believe that a taxpayer would not notice an entire schedule C with a fake business on it (though it is possible). However, the judge’s train of thought on this is not known.

    Per an earlier article in lawfuel.com (here):

    In a the plea agreement filed in connection with today’s proceeding, McCall admitted that, between 2012 and 2014, he knowingly prepared and submitted at least 29 federal income tax returns for clients on which he (a) did not identify himself as the paid tax preparer; (b) attached a Schedule C, Profit or Loss from Business form, that falsely claimed a net loss from a business supposedly owned and operated by the client; and (c) falsely claimed a tax refund due to the client.

    That article noted that the tax loss resulting from the filing of these 29 false returns was at least $175,918, but, in the plea agreement, hundreds of other returns he prepared included Schedules C which similarly claimed substantial losses from a business, and “resulted in refunds claimed of approximately $2,998,946.”

    Posted on 08/08/2019 by Daniel Layton.

    The post Murrieta Tax Preparer Gets No Jail Sentence for Tax Crime appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel Layton.


    The General Rules Applicable to Federal Interpleader Actions Involving Federal Tax Liens

    Interpleader actions are authorized by 28 U.S.C. § 1335 and Rule 22 of the Federal Rules of Civil Procedure where plaintiffs holding funds to property upon […] The post The General Rules Applicable to Federal Interpleader Actions Involving Federal Tax Liens appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel...

    Interpleader actions are authorized by 28 U.S.C. § 1335 and Rule 22 of the Federal Rules of Civil Procedure where plaintiffs holding funds to property upon which conflicting claims are being made by others may deposit the funds with the District Court and require the defendant parties to litigate their interests.  Libby v. City Nat’l Bank, 592 F.2d 504, 507 (1978).  Rule 22 of the Federal Rules of Civil Procedure permits interpleader in any action that meets the normal jurisdictional requirements to be in federal court, such as a substantial question of federal law.  See Morongo Band of Mission Indians v. Cal. State Board of Equalization, 858 f.2d 1376, 1383 (9th Cir. 1988).  Federal interpleader jurisdiction depends on identifiable property, or a limited fund or pecuniary obligation – as opposed to an inchoate, uncertain claim against the general assets of a party.  Murphy v. Travelers Ins. Co., 534 F.2d 1155, 1159 (5th Cir. 1976).  The United States may be named a party in an interpleader action in federal district court where the United States claims a lien on the subject property.  28 U.S.C. § 2410 (a)(5).

    The purpose of the interpleader action is for the court to determine who is entitled to payment from a certain funds, where there is insufficient funds to pay all potentially entitled parties. “[A] stakeholder, acting in good faith, may maintain a suit in interpleader for the purpose of ridding himself of the vexation and expense of resisting adverse claims, even though he believes that only one of them is meritorious. Hunter v. Federal Life Ins. Co., 111 F.2d 551, 556 (8th Cir. Ark. 1940). The interpleader action is often attractive to a third-party holder of the funds because it may allow discharge from liability of the party who deposits the funds (see more in the blog post here and here). “The priority of claims to the res in an interpleader must normally be determined at the time the action is initiated, and cannot be altered by events after the fund becomes viable.”  Texaco, Inc. v. Ponsoldt, 118 F.3d 1367, 1371 (9th Cir. 1997).  This means that actions which affect the priority of the lien (e.g., the expiration of a lien notice) will not change the order of right to payment which existed at the time of the complaint. The general rule that “Federal law governs the relative priority of federal tax liens and state-created liens” applies in interpleader actions.  See Quality Loan Serv. Corp. v. 24702 Pallas Way, 635 F.3d 1128, 1134 (9th Cir. 2011).

    The basic rule of priority (i.e., “first in time, first in right”) applies when federal tax liens compete with a private claimant whose claim is based on a right created by state law.  26 U.S.C. §§ 6321-6323; United States v. City of New Brittain, 347 U.S. 81, 85, 74 S.Ct. 367, 370 (1954).  In order to compete with the statutory federal tax liens, other lien claimants must show that their liens became choate and were perfected under state law before the federal tax liens arose.  United States v. McDermott, 507 U.S. 447, 453-55, 113 S. Ct. 1526, 1529-31 (1992).  “The purpose of filing the notice of lien [is] not to create a lien, but only to maintain its priority over certain other liens, as provided in Internal Revenue Code section 6323.”  Baldassari v. United States, 79 Cal. App.3d 267, 272, 144 Cal.Rptr. 741, 743 (emphasis in original).   Purchasers, holders of security interests, mechanic’s lienors, and judgment lien creditors will have priority under 26 U.S.C. § 6323(a) unless the federal tax liens are recorded first.  26 U.S.C. § 6323(a). 

    A judgment lien creditor is “a person who has obtained a valid judgment, in a court of record and of competent jurisdiction, for the recovery of specifically designated property or for a certain sum of money.”  Lawyer’s Foreclosure Specialist, Inc. v. Schwarz, 2005 U.S. Dist. LEXIS 24681 *5, 96 A.F.T.R.2d (RIA) 6566 (Dist. Missouri 2005) quoting 26 C.F.R. § 301.6323(h)(1)-(g) (2005).  When the lien involves a money judgment, the claimant must have “perfected a lien under the judgment on the property involved.” Tasemkin, Inc., 196 F.3d at 865, quoting 26 C.F.R. § 301.6323(h)1-(g).   The lien must be choate (see blog here) to obtain perfection, which means “the identity of the lienor, the property subject to the lien, and the amount of the lien” must be established.   City of New Britain, 347 U.S. at 87.  In addition, for a lien to be choate requires the right to summarily enforce the lien (see Minnesota Dep’t of Revenue v. United States, 184 F.3d 725, 728 (8th Cir. 1999); United States v. Vermont, 377 U.S. 351, 359, 84 S. Ct. 1267, 12 L. Ed. 2d 370, 1964-2 C.B. 493 (1964)), with nothing further needed be done to make it enforceable (United States v. Bond, 279 F.2d 837 (4th Cir. 1960)). If such a lien is filed before the IRS files its lien, even if the IRS’s balance due arose first, the interpleader court can determine that the non-IRS lien will be entitled to priority of payment.

    Posted on 08/08/2019 by author Daniel Layton.

    The post The General Rules Applicable to Federal Interpleader Actions Involving Federal Tax Liens appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel Layton.


    Former Head of Foster Agency Sentenced for Theft, Money Laundering, Tax Evasion

    The DOJ issued a press release in June highlighting the sentencing, after conviction at jury trial, of an Oregon woman found guilty of stealing over $1 […] The post Former Head of Foster Agency Sentenced for Theft, Money Laundering, Tax Evasion appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel...

    The DOJ issued a press release in June highlighting the sentencing, after conviction at jury trial, of an Oregon woman found guilty of stealing over $1 million from a foster care agency. Portland’s Mary Ayala had served as President, Executive Director, and primary agent of “Give Us This Day,” a foster care agency and youth residential program from 2008 to 2015.

    The FBI agent seemed particularly incensed, as many likely would be, about the idea that the woman had effectively stolen from children who already faced challenges. Per the press release, which can be found here:

    “Foster children have already lost almost everything—their parents, their homes, their sense of security. Mary Holden Ayala took from them the last thing they had—faith in a foster care system that is supposed to give them a chance at a better life. To steal from society’s most vulnerable children to enrich yourself is simply unconscionable,” said Renn Cannon, Special Agent in Charge of the FBI in Oregon.

    “Stealing money meant to pay for foster care expenses is reprehensible,” said Special Agent in Charge Steven Ryan of the HHS Office of Inspector General. “Such greed-fueled fraud can impact those in need and cheats taxpayers; however, today’s sentence shows that our hardworking investigators and law enforcement partners are committed to making sure criminals are held accountable for their actions.”

    According to court documents, since its inception in 1979, GUTD was primarily funded by the Oregon state and federal government for foster care services including hiring and screening foster parents for community placements, compensating foster parents for services and placing foster children in residential or group homes. GUTD federal funding originated from the Administration for Children and Families, a division of the U.S. Department of Health and Human Services, and was administrated by ODHS.

    From 2009 through 2015, Ayala exercised sole and complete control over GUTD finances. No other GUTD employee or board member had access to the organization’s bank accounts or statements during this time. With no internal controls in place, Ayala wrote checks, used the GUTD debit card and withdrew cash at will, using the organization’s bank accounts as her own.

    Ayala used the money stolen from GUTD to pay her mortgage, remodel her home and fund other retail, travel and transportation expenses. Additionally, she used the money to fund other, non-GUTD business ventures including a media company, Big Mary’s fish and ribs restaurant in Portland, and to purchase and flip a commercial property.

    In total, Ayala stole over $1 million from GUTD. As a result, her employees, foster parents and foster children in GUTD’s care suffered. GUTD residential house managers complained about a lack of basic necessities, including but not limited to food, toiletries and cleaning supplies.

    In 2015, the day after Ayala resigned her position at GUTD, she filed five false federal income tax returns for tax years 2009 through 2013. Shortly thereafter, she filed a sixth false return for tax year 2014. Ayala failed to file a tax return in 2015.

    Surprisingly, Ayala was sentenced to 33 months, which by my calculation is the minimum under the sentencing guidelines (Offense Level 20, see the table here) for theft or embezzlement only (see the United States Sentencing Commission’s Guidelines at Section 2B1.1, a 6 base level plus 14 for the amount), without taking into account the additional tax crime. But, there is also an additional 6-level increase under that section where the theft “resulted in substantial financial hardship to 25 or more victims.” In this case, while the DOJ could have argued for this increase, it may have chosen not to make the argument because the children and families were not the direct victims. It is unclear what mitigating factors were presented to the judge from the press release.

    The author of this post is Daniel Layton, a former Federal Prosecutor in the Los Angeles U.S. Attorney’s Office Tax Division and former IRS trial attorney. He has offices in Newport Beach and Fullerton, California.

    Posted on 7/25/2019 by Daniel W. Layton.

    The post Former Head of Foster Agency Sentenced for Theft, Money Laundering, Tax Evasion appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel Layton.


    How Long Do You Have to File a Franchise Tax Board Tax Refund Suit?

    Question: How Long Do You Have to File a California Franchise Tax Board Income Tax Refund Suit? Answer: Generally, if you have full paid the tax […] The post How Long Do You Have to File a Franchise Tax Board Tax Refund Suit? appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel...

    Question: How Long Do You Have to File a California Franchise Tax Board Income Tax Refund Suit?

    Answer: Generally, if you have full paid the tax and filed a claim for refund (e.g., through an amended return), once the California FTB issues its denial (e.g., through a notice of action) or the Office of Tax Appeals (OTA) issues its decision, opinion or dismissal, you have 90 days to file the appeal.

    The FTB’s provisions somewhat mirror the IRS’s, but the IRS’s provisions do not allow for a second chance following an OTA disposition.  As explained in more detail in another blog post, here, “under the federal statute, 26 U.S.C. § 6532(a)(1), a taxpayer generally may not wait longer than 2 years from the issuance of the IRS’s disallowance of the administrative refund claim to bring suit. 

    “A taxpayer may file suit to recover ‘a tax claimed to be illegal,’ after the tax has been paid. (Cal. Const., art. XIII, § 32.)” Jensen v. Franchise Tax Bd., 178 Cal.App.4th 426, 100 Cal. Rptr. 3d 408 (Cal. App., 2009). Section 19382 of the Revenue and Taxation Code of California provides that the taxpayer may bring an action for a claim for refund after full payment and denial by the FTB. If a notice of action is received denying the claim for refund, you have 90 days to file the suit in superior court (Section 19384) or to file an appeal to the Office of Tax Appeals (as substituted in for the Board of Equalization in this section) (Section 19324).  If the OTA issues a decision, opinion or dismissal, you have 90 days from that event to file a claim in superior court (Section 19384).

    Section 19385 provides that the taxpayer may consider the claim disallowed if the FTB fails to mail notice of action on the refund claim within 6 months after the refund claim was filed. This mirrors part of 26 U.S.C. § 6532(a)(1) which provides for a 6 month wait before filing suit after the claim is filed.

    The author of this post, Daniel W. Layton, is a former IRS trial attorney and ex-federal prosecutor in Los Angeles’s U.S. Attorney’s Office, Tax Division. He is the founder of a tax law firm in Orange County, California.

    Posted 07/23/2019 by Daniel Layton.

    The post How Long Do You Have to File a Franchise Tax Board Tax Refund Suit? appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel Layton.


    Recent Conviction Illustrates Connection Between Use of Nominees and Tax Evasion

    A Recent Conviction in Hawaii’s U.S. District Court Illustrates How the Use of Nominees Can Put You in the Crosshairs of the IRS and DOJ for […] The post Recent Conviction Illustrates Connection Between Use of Nominees and Tax Evasion appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel...

    A Recent Conviction in Hawaii’s U.S. District Court Illustrates How the Use of Nominees Can Put You in the Crosshairs of the IRS and DOJ for Potential Tax Evasion Charges.

    In essence, the term nominee, in the tax law world, describes a situation where an asset which belongs to one person (or entity) is placed into the name of a third party, but it is understood between the person and the third party that the third party does not have equitable ownership (i.e., control over its disposition or right to unfettered use). Use of a nominee is not always to commit a fraud (e.g., it can be done for legitimate business reasons), but it can be considered an affirmative act of evasion when done to avoid a known tax liability.

    A recent press release illustrates on instance where the alleged use of nominees put a taxpayer and a CPA in the cross-hairs of the IRS.

    Per the D.O.J. Press Release (here):

    On Nov. 20, 2018, a jury convicted Higa of conspiracy to defraud the United States along with co-conspirator Wagdy Guirguis. In addition to the conspiracy conviction, Higa was also convicted of one count of assisting in the preparation of a false tax return. The convictions arose from a scheme to divert funds from Guirguis’ business entities for his own personal benefit and to avoid the payment of federal employment taxes, corporate and individual income taxes, and Internal Revenue Service (IRS) penalties.

    According to the evidence presented at trial, Guirguis operated numerous engineering businesses. Higa, a CPA, was the controller of these businesses. Higa also served as a nominee officer of another entity controlled by Guirguis. When the IRS determined Guirguis’ businesses owed over $800,000 in federal employment taxes and assessed an $812,000 penalty, Guirguis and Higa took steps to place income and assets out of the reach of the IRS. For instance, Guirguis and Higa used a nominee entity to fraudulently convey a condominium to Guirguis’ wife. After an IRS revenue officer began questioning Mrs. Guirguis’ sole ownership of this condominium, Guirguis and Higa instructed a bookkeeper to alter the books and records in an attempt to conceal this transaction from the IRS.

    From 2001 through 2012, Guirguis and Higa also used a nominee entity to divert approximately $1.3 million from Guirguis’ businesses for Guirguis’ personal use. As a result of their diversion and concealment efforts, Guirguis’ 2010 through 2012 returns omitted $553,000 in income, resulting in a tax deficiency of $165,000. In addition, Higa prepared a false corporate income tax return for one of Guirguis’ entities that failed to report over $1.3 million in gross receipts.

    Guirguis was sentenced to 5 years prison five days earlier.

    Posted on 07/11/2019 by Daniel W. Layton.

    The post Recent Conviction Illustrates Connection Between Use of Nominees and Tax Evasion appeared first on Tax Attorney Newport Beach and Fullerton, Orange County, CA | Daniel Layton.


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