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Does the Attorney-Client Privilege Extend to Accountants and CPAs?

July 18, 2011, by The McKellar Law Firm, PLLC

One of many sensitive issues that a criminal tax attorney must address is whether the attorney-client privilege extends to those involved in a case, and in particular, whether such privilege applies to accountants and CPAs who work on the case. In United States v. Kovel, 296 F.2d 918 (2nd Cir. 1961), the Second Circuit Court of Appeals extended the attorney-client privilege to accountants assisting attorneys in criminal tax claims. This has become known as "Koveling" and has allowed accountants--known as Kovel accountants--to assist practicing tax attorneys giving legal services to clients. However, this privilege does have some caveats that, if not known, could cause ordinarily privileged information to be released to the IRS if one is not careful.

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Under I.R.C. ยง 7525, privileged communications between a taxpayer and an accountant are only available in non-criminal tax matters. Koveling allows this privilege to extend to criminal tax cases when accountants assist attorneys render legal services. This privilege is similar to the work product privilege, which allows any information that was given while anticipating litigation to be protected from opposing counsel.

If a taxpayer is facing criminal tax charges, it is unwise to have the taxpayer's regular accountant be the Kovel accountant in the criminal tax claim. While the regular accountant may already know the ins and outs of the taxpayer's current situation, this will only hurt the taxpayer. While Koveling protects information gathered by an accountant assisting an attorney anticipating litigation, any information gathered outside of that scope is fair game for the IRS. A regular accountant may know the taxpayer's situation from the outset, but that opens the risk that the accountant may already know information that would be damaging to the taxpayer before litigation was anticipated. The accountant then would have to release that information to the IRS if they requested it. A new accountant, on the other hand, could successfully gather privileged information since everything they gather is "Kovelized."

Another important fact is that Koveling only applies to providing legal services. As an example, an accountant would not be a Kovel accountant for merely filing tax returns. But, if tax returns are prepared along with some legal service, then Koveling may apply. A taxpayer's safest course of conduct would be to have a Kovel accountant work with attorneys in developing information, and then have another accountant actually prepare the tax returns if a client wanted both services performed. While this option is more costly since it would require hiring two different accountants, this course of action provides the greatest protection to a client/taxpayer.

Ultimately, while Koveling can be very beneficial in helping tax attorneys assist clients facing criminal tax charges, this privilege is not absolute. If a Kovel accountant provides any services other than legal services for an attorney's client, or is a client's regular accountant before the client is charged with a tax crime, the Government could bypass the Kovel privilege--thereby allowing a client's potentially damaging information to be released to the IRS or Department of Justice.

Georgia Man Sentenced to 15 Months Imprisonment for Failure to File Tax Returns

According to a press release from the United States Attorney for the Northern District of Georgia, a Monroe, Georgia man was sentenced to 15 months in prison for failing to file his income tax returns. James Guinn owned a plumbing business near Atlanta, and from 2003 to 2006, Guinn's adjusted gross income was over $350,000. However, Guinn failed to file tax returns for any of those years.

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Guinn apparently refused to file his federal returns because of information from the group "American Rights Litigators." American Rights Litigators is an anti-tax organization that advises clients on avoiding payment of income taxes. The group is probably best known for its connection with actor Wesley Snipes, who did not file tax returns for years based on the advice he received from the founder of American Rights Litigators, Eddie Kahn.

James Guinn was warned by the IRS that the anti-tax arguments he advanced were not legally valid and that he was required to file income tax returns. Guinn nonetheless refused to pay a total of approximately $67,513 in income tax. Guinn will be paying that amount now as restitution to the IRS along with a $20,000 fine.

As the Guinn case shows, non-payment of income tax can result in serious financial penalties and even imprisonment. The government will continue its crackdown on alleged financial fraud and tax crimes, and cases like Guinn's will become increasingly common. If you have received a summons or warrant from the IRS, you need a criminal defense attorney experienced in federal tax law.