The DOJ Tax Division has long recognized the efficacy of parallel criminal and civil proceedings and actively pursues them in its current endeavor at increased enforcement. Parallel proceedings often present complicated issues that create additional challenges for taxpayers and their attorneys. When a parallel proceeding is pending, the invocation of the Fifth Amendment by either the taxpayer, a tax advisor, or other non-party witness can create adverse implications in a subsequent proceeding. Taxpayers and their attorneys must carefully navigate the risk of an adverse inference against the taxpayer under the circumstances of the particular case. The well-informed attorney can prepare to face all of these issues and effectively navigate the specific facts of his or her case. The following discussion will explain and analyze: the effect of a party’s invocation in independent proceedings, the effect of a party’s invocation in parallel proceedings, the implications of a non-party’s invocation, and whether an invoker can waive the privilege and later testify.
“Strategies for Managing Parallel Proceedings with Fifth Amendment Implications,” Inside the Minds: Strategies for Criminal Tax Cases
About Marc Teitelbaum
Marc Teitelbaum is the former chair of Dentons' Tax practice, which was recognized by The Legal 500 in 2020 for outstanding work in international and non-contentious tax. Marc has been involved in advising public companies, underwriters and investment funds principally in the following areas: acquisition and disposition of domestic and foreign corporations whether taxable or tax-free transactions; the US tax consequences of foreign operations and foreign joint ventures, in particular, multinational manufacturing and sales operations; debt and equity financings; and investment strategies in partnership form, including tax- and accounting-advantaged structured domestic and cross-border financing arrangements.
About John Harrington
John Harrington is the co-leader of Dentons' US Tax practice, which was recognized by The Legal 500 in 2020 for outstanding work in international and non-contentious tax. Recognized by Chambers Global as a Notable Practitioner, he advises clients on inbound and outbound transactional and compliance issues; international tax legislative, regulatory and treaty matters; and a variety of domestic tax issues.
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