The Erosion of the Fifth Amendment Privilege

“You’d have to be living in a hole not to know that the U.S. government is really focused on offshore tax evasion,” IRS Commissioner Shulman told Bloomberg News earlier this year. The Bank Secrecy Act of 1970 (“BSA”) permits civil and criminal penalties for U.S. taxpayers who fail to report interests in foreign financial accounts. In the past, however, civil and criminal enforcement was rare; between 1996 and 2002 only twelve indictments were reported. In 2001, heightened financial reporting requirements were enacted under the Patriot Act, which is expressly designed to help prosecute international crimes. The government’s formal declaration of war on foreign tax evasion was commemorated in 2008 when a district court authorized the IRS’s John Doe Summons on Swiss bank UBS, demanding documents identifying U.S. taxpayers with unreported accounts. This order followed the indictments and guilty pleas of a high-profile UBS customer and his private UBS banker. In 2009, the DOJ charged UBS with aiding U.S. taxpayers in tax evasion. The bank avoided prosecution by paying $780 million and disclosing account data. Shulman promised severe penalties as the government pursued “criminal avenues” for these targeted individuals. Criminal charges have since been filed against numerous taxpayers, bankers, financial advisers, and lawyers linked to the data. Still, earlier this year, the IRS threatened offshore bank account holders with the increasing risks of criminal prosecution.

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John Harrington

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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Marc Teitelbaum

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.

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