Theater of The Courtroom

Join me as I walk you through an introduction to IRS Appeals. In this podcast, I discuss the IRS Appeals process along with the following: •The Role of Appeals •Hazards of Litigation •What does Appeals Consider? •What issues can the TP Raise? •Overview of Appeals Process •Role of the Appeals team manager •What if agreement is reached? •What if agreement is not reached? •Independence of Appeals & Ex Parte •Non-docketed versus Docketed cases   To access the slides, click here.

Join me as I walk you through the anatomy of a civil tax controversy from A through Z. This webinar will cover each step in the process, and will take a closer look at what to do during an eggshell audit. Other topics to be discussed include cases typically recommended for prosecution, attorney-client privilege in the tax realm, Kovel Agreements, IRS Appeals, and more. Learning Objectives: Gain an in-depth overview of the anatomy of a civil tax controversy from A through Z Develop best practices for walking your client through an eggshell audit Review attorney-client privilege in the tax realm Discuss the use of a Kovel Accountant and drafting an airtight Kovel Agreement Comprehend the IRS Appeals Process Evaluate the hazards of litigation To access the slides, click here.

This is a webinar from a recent presentation that I did for CPA Academy. I am honored to lecture for such a fine CPE provider.

This was a presentation that I did for CPAAcademy on February 26, 2019. I am honored to be a guest lecturer for this fine CPE provider. Enjoy.

This is the last part of my presentation on, "Is that Worker An Employee? Questions and Answers on Worker Classification." The topic is "Requesting a Tax Court Determination."

Course Description If you own or manage a business that uses independent contractors, you need to know when you can or cannot treat a worker as an independent contractor. This presentation answers some of the common questions about worker classification. INTRODUCTION Misclassification of employees as independent contractors is now a common phrase uttered by state and federal legislators and regulators. State task forces have been formed to crack down on businesses that do not pay unemployment insurance and workers’ compensation premiums or withhold taxes for workers whom the state believes are employees and not independent contractors.

In this podcast, I discuss how to calculate the 5 percent miscellaneous offshore penalty under the streamlined domestic procedures. The miscellaneous offshore penalty is equal to 5 percent of the highest aggregate balance/value of the taxpayer’s foreign financial assets that are subject to the miscellaneous offshore penalty during the years in the covered tax return period and the covered FBAR period. For this purpose, the highest aggregate balance/value is determined by adding the year-end account balances and year-end asset values of all the foreign financial assets subject to the miscellaneous offshore penalty for each of the years in the covered tax return period and the covered FBAR period and selecting the highest aggregate balance/value from among those years. A foreign financial asset is subject to the 5-percent miscellaneous offshore penalty if the asset should have been, but was not, reported on an FBAR (FinCEN Form 114) for that year. A foreign financial asset is subject to the 5-percent miscellaneous offshore penalty in a given year in the covered tax return period if the asset should have been, but was not, reported on a Form 8938 for that year. A foreign financial asset is also subject to the 5-percent miscellaneous offshore penalty in a given year in the covered tax return period if the asset was properly reported for that year, but gross income in respect of the asset was not reported in that year. For information on the meaning of foreign financial asset, see the instructions for FinCEN Form 114 and the instructions for Form 8938. For example, foreign financial assets may include: financial accounts held at foreign financial institutions; financial accounts held at a foreign branch of a U.S. financial institution; foreign stock or securities not held in a financial account;  foreign mutual funds; and foreign hedge funds and foreign private equity funds.

In this podcast, I discuss the instructions for making a submission to the streamlined domestic offshore program. For each of the most recent 3 years for which the U.S. tax return due date (or properly applied for extended due date) has passed, submit a complete and accurate amended tax return using Form 1040X, Amended U.S. Individual Income Tax Return, together with any required information returns (e.g., Forms 3520, 3520-A, 5471, 5472, 8938, 926, and 8621) even if these information returns would normally not be submitted with the Form 1040 had the taxpayer filed a complete and accurate original return.     Include at the top of the first page of each amended tax return "Streamlined Domestic Offshore" written in red to indicate that the returns are being submitted under the streamlined procedures.   Complete and sign a statement on the Certification by U.S. Person Residing in the U.S. (Form 14654) certifying: (1) that you are eligible for the Streamlined Domestic Offshore Procedures; (2) that all required FBARs have now been filed (see instruction 9 below); (3) that the failure to report all income, pay all tax, and submit all required information returns, including FBARs, resulted from non-willful conduct; and (4) that the miscellaneous offshore penalty amount is accurate (see instruction 5 below). You must maintain your foreign financial asset information supporting the self-certified miscellaneous offshore penalty computation and be prepared to provide it upon request.     Submit payment of all tax due as reflected on the tax returns and all applicable statutory interest with respect to each of the late payment amounts. Your taxpayer identification number must be included on your check. You may receive a balance due notice or a refund if the tax or interest is not calculated correctly.   Submit payment of the Title 26 miscellaneous offshore penalty as defined above.     If you seek relief for failure to timely elect deferral of income from certain retirement or savings plans where deferral is permitted by an applicable treaty, submit:   a statement requesting an extension of time to make an election to defer income tax and identifying the applicable treaty provision; a dated statement signed by you under penalties of perjury describing: the events that led to the failure to make the election, the events that led to the discovery of the failure, and if you relied on a professional advisor, the nature of the advisor’s engagement and responsibilities. The documents listed above, together with the payments described above, must be sent in paper form (electronic submissions will not be accepted) to: Internal Revenue Service 3651 South I-H 35Stop 6063 AUSC Attn:  Streamlined Domestic Offshore Austin, TX 78741 Finally, for each of the most recent 6 years for which the FBAR due date has passed, file delinquent FBARs according to the FBAR instructions and include a statement explaining that the FBARs are being filed as part of the Streamlined Filing Compliance Procedures. You must file these delinquent FBARs electronically at FinCen. On the cover page of the electronic form, select “Other” as the reason for filing late. An explanation box will appear. In the explanation box, enter “Streamlined Filing Compliance Procedures.”  

Enjoy the content.

In this episode I discuss eggshell audits and what to do when it comes to filing returns for tax periods subsequent to periods under examination.

In this podcast, I discuss the important inter-connections between civil tax and criminal tax. Below is a quick and dirty outline to help you follow along. Timing Since time and memorial, the government has proceeded w/ criminal tax investigation and prosecution first, suspending audit and collection until completion of the criminal proceedings This policy reflects several considerations, the most important of which is that civil discovery could reveal too early, too much of the government’s criminal case. The gov’t was concerned that TPs could use civil discovery procedures to find out more about its case than what the criminal discovery procedures otherwise allowed Why is the gov’t afraid of discovery of its case? Is the gov’t trying to send people to jail by secrecy or by ambush? That historic rationale has diminished. Prosecutors today are more inclined to err on the side of caution and tend to voluntarily disclose more in light of recent and notable cases admonishing prosecutors for withholding relevant - and in some cases - exculpatory evidence from the defense. Nonetheless, the gov’t strictly adheres to its historical practice of doing the criminal side first, with the sole exception being tax shelter cases. The gov’t works the civil and criminal sides simultaneously. Outside of the tax shelter context, the historic policy of “criminal first, civil later” is the norm Even if the gov’t doesn’t suspend civil proceedings, a judge might.   Civil liability and pleas A judge may be more inclined to allow a downward adjustment for acceptance of responsibility if TP-def. has paid or agreed to pay the tax liability TP loses nothing. Payment is n/ an admission of liability or an admission that the limitations period remains open. TP will still be able to argue about liability later. Nor does paying the tax eliminate the possibility of adjudicating this matter in a civil forum, such as U.S. Tax Court. TP can file a refund claim w/ the IRS  Civil Penalties When the gov’t gets around to the civil side, it will assert against TP n/ just deficiency and interest but also civil penalties Civil fraud penalties The most frequently asserted civil penalty is s. 6663 – the 800 pound gorilla of civil tax penalties A TP who fraudulently prevents (or minimizes) assessment of taxes may: (1) File a false return (S. 6663 penalty applies only to filed returns) or (2) Refrain from filing a return   Filed returns 6663(a) imposes a penalty equal to 75% of the portion of the underpayment that is attributable to fraud Joint returns: In the case of married-filing-jointly returns, fraud by one spouse is n/ attributed to the other. Under 6663(c), the penalty applies only to the spouse who the IRS proves to have committed fraud In order to assert fraud against one spouse, the gov’t must have evidence of fraud as to that spouse. The wife does n/ become liable for the 6663 penalty simply b/c the husband committed tax fraud. If the gov’t wants to pursue the wife for fraud, it must independently prove fraud as to the wife, separate and apart from the husband  How is fraud established? By badges of fraud Failing to maintain adequate books and records, Failing to file returns, Concealing assets 3. Accuracy-related penalty S. 6662 accuracy-related penalty is an alternative to the fraud penalty Under 6662(a), the penalty amount is 20% of the underpayment The penalty applies whenever any of six conditions is present 6662 comes up in the civil-criminal context in one of two ways: TP is acquitted for tax evasion. Gov’t doesn’t have a strong case of tax fraud when it gets to the civil side. Gov’t might assert 6663, or in the alternative, 6662. If the gov’t loses the fraud penalty, at least it can get the accuracy-related penalty which does not require a showing of fraud and thus might be easier to prove There is a jointly-filed return. The gov’t thinks that it can prove fraud against one spouse but n/ the other. The gov’t will assert fraud against one and 6662 (accuracy related penalty) against the innocent spouse 4. Delinquency penalties The civil penalty for failing to timely file returns is 6651(a)(1) 5. Other civil penalties There are a plethora of other civil penalties that parallel criminal penalties or could apply in circumstances in which criminal tax prosecution is a potential A number of civil penalties relate to tax advisers. For example, 6694(a) penalizes income tax return preparers who negligently advise TPs leading to tax understatements. And 6700 penalizes tax preparers who organize, sell interests in, or promote abusive tax shelters

In this podcast, I discuss the pre-sentence investigation report. Below is a quick and dirty outline: After conviction and prior to sentencing, a probation officer will interview the def. and prepare a PSR. In the PSR, the probation officer will: Calculate the defendant’s offense level and criminal history category, State the resulting sentencing range and kinds of sentences available, Identify any factors relevant to the kind of sentence (e.g., probation, imprisonment), Recommend a sentence w/in the applicable sentencing range, and Identify any basis for departing from the applicable sentencing range The PSR includes: The defendant’s prior criminal record, The defendant’s financial condition, and Information sufficient to calculate restitution The defendant is entitled to be represented by an attorney at the interview w/ the probation officer and I strongly recommend it. Why is the pre-sentence investigation report important? For the following two reasons: Judges give deference to the recommendations of the probation officer. Thus, the PSR is instrumental in the sentencing judge’s determination. Both the defense and the gov’t may make formal objections to the PSR but the judge resolves all such disputes under the preponderance of the evidence standard - a low standard indeed. Apart from the judge and sentencing, the PSR follows def. throughout his time in prison and can affect various decisions as to def. after the judge imposes sentence (i.e., the defendant’s life in prison and any period of probation or supervised release). Procedurally, once the PSR is prepared, the probation officer will provide a copy to the def., the defendant’s attorney, and the prosecutor. The defense and the gov’t have the opportunity to make objections to the PSR at the sentencing hearing, which consists of oral arguments before the judge. The rules of evidence do n/ apply to the admission of testimony or other evidence at the sentencing hearing. There are three times when defense counsel can have a big impact on the sentence that the judge imposes:  Situation 1: Defense counsel bargains w/ the prosecutor.   Situation 2: Defense counsel can work w/ the probation officer independently of the prosecutor – i.e., w/o forming an agreement w/ the prosecutor as in situation one. The goal is to try and get the probation officer to include favorable facts in the PSR. Situation 3: If the PSR contains something that you don’t like, you can make objections at the sentencing hearing that the PSR is wrong or should be modified by the judge and ask the judge to redact it from the pre-sentence investigation report.

Below is a quick and dirty outline of the steps that I cover in this podcast for determining the sentence of a defendant who has been convicted of a tax crime in federal court. If you would like the full outline, please email me or send me a message on Linked In. Enjoy! Step 1: Determine the base offense level by reference to the tax loss number Step 2: Adjust the offense level in light of specific offense characteristics Step 3: Calculating the sentence Step 4: Fines Step 5: Court will determine whether restitution should be imposed Step 6: Departures

This is a webinar that I presented in partnership with CPA Academy. I'm honored to lecture for such a fine CPE provider. For those who are interested in obtaining CPE credit, click here to sign up. Below is more information about the program: Course Description In one of the climactic scenes from 1954’s On The Waterfront, Crime Commission prosecutors had to make their corruption case against union boss Johnny Friendly (a/k/a Michael Skelly) by convincing a reticent yet pure-hearted Terry Malloy to come forward and tell what he knew about corruption in the International Longshoremen’s Association, beginning with the murder of Joey Doyle, because an underling insisted that “we were robbed last night and can’t find no books.” If that same case came up in 21st Century tax court, Eva Marie Saint and Karl Malden could’ve stayed at home rather than serving as Marlon Brando’s cheering section, because government prosecutors could reconstruct the ILA’s income, based on the records retention requirements in Section 6500 et seq. In other words, the conventional wisdom that only divine beings can create something out of nothing does not apply in income tax evasion cases. Is it enough for the government to pull a metaphorical rabbit out of a metaphorical hat, or are there some additional requirements? Learning Objectives: Elements of Tax Evasion Define Substantial Tax Deficiency Methods of Proof

This is the first of several parts. There is a lot of information to discuss that it might feel like drinking water out of a fire hydrant. Sentencing issues are arguably the most important part of a federal criminal tax case. Because the likelihood of conviction is so high, the best that defense counsel can do for his client is minimize the sentence. The law surrounding federal criminal sentencing is in a stage of upheaval. The Booker case fundamentally altered the legal landscape. This is an unsettled area. This podcast will cover five topics:  The U.S. sentencing guidelines – generally Sentencing procedures Booker and its immediate aftermath Specific applications of the sentencing guidelines to criminal tax prosecutions. Recent developments Enjoy the show!  

This presentation breaks down the FBAR, FinCEN's most common international reporting form.

This is a recent presentation that I did with Marino Legal Academy. I am honored to present with such a prestigious CLE provider. Enjoy.

A number of events can give rise to taxable income even though you haven't received any cash. In this podcast, we'll discuss constructive receipt and what it means to have a legal right to a payment; tax consequences for a plaintiff in a personal injury action or employment-related matter; cancellation of debt income; and phantom income from pass-through entities and how partners have an obligation to report it even if the partners don't receive a payout.  

You've come up with a creative mobile app idea and you want to protect your idea with a patent. This is smart. Patenting a mobile app is a critical part of protecting your intellectual property and allowing you to seek damages in the event it is infringed upon.  Here's what you should know. First, applying for a patent is not easy. It's a detailed and cumbersome process. In this masterclass, I hope to demystify this process by teaching you some key things about the patenting process so you don't have to rack your brain trying to figure it out for yourself. In this podcast, I'll cover the following topics: 1. Why Should You Patent a Mobile App? 2. The United State Patent and Trademark Office (USPTO) Rule; 3. The Requirements for a Patent; 4. How Much Does a Patent Cost? 5. Factors to Consider when Deciding Whether to Apply for a Patent; 6. Other ways to Protect your App Besides Patenting It; 7. Four Step-Process for Patenting Your App i. Step One: Do a patent search. ii. Step Two: Create designs for your App idea to expedite approval from the patent office. iii. Step Three: File for a Provisional Patent. iv. Step Four: Convert Your Provisional Patent Into a Non-provisional Patent. 

This podcast deals with the importance of taking action against a third party who misappropriates your trademark and contains a valuable lesson. Enjoy.

Enjoy this Masterclass.

This is an update on IRS Collection issues as they affect taxpayers in the following areas: financial standards in Collection Information Statements (CIS), the updated offer in compromise booklet, and the impact of the new law on the time to file wrongful levy claims.

As both a lawyer specializing in entertainment law and an actor, this topic fascinates me. Because it's so broad, I'm splitting it up into two episodes. In Part I, I cover the basics. In Part II, I will delve into the most common issues that arise when it come to buying or selling a screenplay. See my blogpost on this topic here. 

Enjoy the podcast.

I realize this is a topic entrepreneurs would rather not talk about. But with a recent statistic showing that approximately one in every three new businesses fail within the first two years, it can no longer be ignored.  As harsh as this might sound, businesses don’t fail by themselves. Instead, businesses usually fail on account of the owner. The sad part about it is that in most cases, the business owner is oblivious to the fact that the ship is sinking until it is too late. However, with the availability of professional counsel and advice, inexperience no longer has to be "the Mean One (i.e. the Grinch)." It need not be an obstacle to success. Surrounding yourself with the "key players" will help you build a strong and healthy business for years to come. In this podcast, I discuss the twelve reasons why new businesses fail. I've assembled this list not because I want to discourage you or take the wind out of your sails but instead, so that you won't repeat these mistakes. I want to see your business succeed and ultimately thrive. To the extent that I can help you navigate the choppy seas of the start-up world and avoid common pitfalls along the way, I will have done my job.  Before you launch your new business, stop and ask yourself: “Will I be making one or more of the following mistakes?” Below is the list. In this podcast (Part 2), I discuss reasons six through twelve.  1. Lack of business planning 2. Lack of Knowledge 3. Lack of Product/Service Differentiation 4. Poor Management and Operations 5. Not Knowing What Customers Need 6. Lack Access to Capital 7. Lack of an Exit Strategy 8. The Wrong Partner 9. No Online Presence 10. No Marketing and Public Relations 11. Significant Market Changes 12. Indifference Towards Cybersecurity

I realize this is a topic entrepreneurs would rather not talk about. But with a recent statistic showing that approximately one in every three new businesses fail within the first two years, it can no longer be ignored.  As harsh as this might sound, businesses don’t fail by themselves. Instead, businesses usually fail on account of the owner. The sad part about it is that in most cases, the business owner is oblivious to the fact that the ship is sinking until it is too late. However, with the availability of professional counsel and advice, inexperience no longer has to be "the Mean One (i.e. the Grinch)." It need not be an obstacle to success. Surrounding yourself with the "key players" will help you build a strong and healthy business for years to come. In this podcast, I discuss the twelve reasons why new businesses fail. I've assembled this list not because I want to discourage you or take the wind out of your sails but instead, so that you won't repeat these mistakes. I want to see your business succeed and ultimately thrive. To the extent that I can help you navigate the choppy seas of the start-up world and avoid common pitfalls along the way, I will have done my job.  Before you launch your new business, stop and ask yourself: “Will I be making one or more of the following mistakes?” Below is the list. In Part 1 of this podcast, I discuss the first five reasons. In Part 2, I discuss reasons six through twelve.  1. Lack of business planning 2. Lack of Knowledge 3. Lack of Product/Service Differentiation 4. Poor Management and Operations 5. Not Knowing What Customers Need 6. Lack Access to Capital 7. Lack of an Exit Strategy 8. The Wrong Partner 9. No Online Presence 10. No Marketing and Public Relations 11. Significant Market Changes 12. Indifference Towards Cybersecurity

A new U.S. District court case has zeroed in on the definition of “willful” for purposes of applying the more serious penalties for failure to file tan FBAR. In U.S. v. Garrity, 2018 U.S. Dist. LEXIS 56888 (D. Conn. 2018), the United States District Court of Connecticut dealt taxpayers with undisclosed foreign accounts a hard blow. In advancing to the next stage of trial, the court said that the IRS could prove the elements of its FBAR penalty claim by a mere preponderance of the evidence. What's more, the IRS can carry its burden to prove willfulness by showing reckless conduct by the taxpayer, as opposed to the more stringent "intentional violation" standard required in the criminal context. In this podcast, I discuss the Garrity case and what it means for taxpayers with unreported foreign accounts. I also provide some background about the FBAR requirement and get into a robust discussion about the term, "willfulness" and willful blindness. Finally, I provide examples of situations in which willfulness may exist for purposes of asserting the civil FBAR penalty.

As a general rule, corporations and LLCs are separate and distinct from their shareholders and members. This means that the owners are typically not liable personally for the debts and obligations (including judgments and settlements) of the company. However, sometimes courts see fit to pierce the corporate veil, bypassing the company and finding one or more of the owners personally liable. In this podcast, I discuss best practices that company owners should implement in order to decrease the chances that the corporate veil will be pierced. 

One of the key decisions you will have to make at the early stages of starting your new company is whether to operate your business as a sole proprietor or structure it as a limited partnership, limited liability company or corporation. In this podcast, I discuss the different legal entities, costs of formation and maintenance, tax consequences of each, and selecting the state in which your proposed entity will be formed.

Jersey Boys is by far my favorite Broadway musical.  For those who are unfamiliar with Jersey Boys, you must be living under a rock! Jersey Boys was a 2005 jukebox musical with music by Bob Gaudio, and book by Marshall Brickman and Rick Elice.  It is presented in a documentary-style format that dramatizes the formation, success and eventual break-up of the 1960s rock 'n' roll group The Four Seasons. The musical is structured as four "seasons", each narrated by a different member of the band who gives his own perspective on its history and music. Songs include "Big Girls Don't Cry", "Sherry", "December 1963 (Oh, What A Night)", "My Eyes Adored You", "Stay", "Can't Take My Eyes Off You", "Working My Way Back to You" and "Rag Doll", among others. The title refers to the fact that the members of The Four Seasons are from New Jersey and are men. The musical ran on Broadway from 2005 to 2017, and since its debut has seen two North American national tours and productions in London's West End, Las Vegas, Chicago, Toronto, Singapore, South Africa, The Netherlands and elsewhere. Jersey Boys won four 2006 Tony Awards including Best Musical, and the 2009 Laurence Olivier Award for Best New Musical. Jersey Boys was the behind the scenes story of Frankie Valli and The Four Seasons. From the streets of New Jersey to the Rock and Roll Hall of Fame, this was the musical that rocked the world. Let’s talk about some legal issues that surfaced during the running of the musical. Specifically, there are two cases that grew out of copyright infringement claims and shook the foundation of the Jersey Boys empire. They are SOFA Ent., Inc. v. Dodger Prod. and Corbello v. DeVito. In this episode, I'll discuss each case. For those who are die-hard fans of "Jersey Boys," you will love the new musical, "A Bronx Tale" that has taken Broadway by storm. 

In part 2 of "The ABC's of Internet Law," I discuss the following topics: Collecting Emails Outreach Emails Trademarks The Future of Internet Regulation International Enforcement The key takeaways are as follows: Compel your users to accept your terms of service using a checkbox and keep server logs.
 When you update terms and conditions, force your users to accept them before they can continue using your site.
 Use disclaimers on your pages when giving advice such as health or financial advice that can affect people’s lives.
 Clearly display an earnings disclosure on your site if you are earning affiliate income.
 Linking to the original source of an image does not cloak you in a veil of immunity when it comes to copyright liability.
 Don’t steal photos - take your own or use stock photos. 

Use a third party email platform such as Constant Contact or MailChimp as they force you to comply with SPAM laws.
 Register your brand as a trademark or risk losing it to someone else.
 

You can never go wrong when it comes to purchasing insurance. Be sure to purchase liability, trademark and a further umbrella insurance policy.


In this episode, I discuss the following topics: Jurisdiction Privacy Policy, Terms of Service & Terms and Conditions Terms of Service Privacy Policy Using Templates to Create Terms of Service & Privacy Policy Updating Terms and Conditions Requiring the User to Check a Box Giving Bad Information or Advice Criticism in Product Reviews Earnings Disclaimers Why Do We Need Disclaimers? What Does “Display Clearly” Mean? What is the FTC On the Lookout For? What Would Happen in Court? What Should You Do In Practice?

When it comes to deciding the best business entity for your small business, the question that is top of mind for entrepreneurs is usually, “What’s the difference between an LLC and an S Corporation?” In this episode, I discuss each.

In Cold Blood is a non-fiction novel by author Truman Capote, published in 1966. It chronicles the 1959 murders of four members of the Herbert Clutter family in the small farming community of Holcomb, Kansas. Herb Clutter was a wealthy farmer in western Kansas. He employed as many as 18 workers, who admired and respected him for his fair treatment and good wages. Two elder daughters, Eveanna and Beverly, had moved out and started their adult lives; Nancy, 16, and Kenyon, 15, were in high school. Two ex-convicts recently paroled from the Kansas State Penitentiary, Richard "Dick" Hickock and Perry Edward Smith, committed the robbery and murders. It happened in the early morning hours of November 15, 1959. The plan was hatched by Hickock who learned about Mr. Clutter from Floyd Wells, a former cellmate (yes, Hickock had a “jacket”). Wells had worked for Herb Clutter and told Hickock that Clutter kept large amounts of cash in a safe at his home. Hickock hatched the idea to steal the safe and start a new life in Mexico. According to Capote, Hickock thought this would be "a cinch, the perfect score." Hickock later contacted Smith, another former cellmate, to enlist him in committing the robbery with him. The travesty in this is that Herb Clutter had no safe and did all of his business by check. After driving more than four hundred miles across the state of Kansas on the evening of November 14, Hickock and Smith arrived in Holcomb, located the Clutter home, and parked the car in an isolated area. They had been drinking. The farm sat on a large estate in a desolate and rural area of the town miles away from the center square. The pair entered through an unlocked door while the family slept. Upon rousing Mr. Clutter, the pair attempted to get him to disclose the whereabouts of the safe. Mr. Clutter denied having one. Hickock and Smith believed that Mr. Clutter was lying. They awoke the rest of the family. Upon discovering there was no safe, they bound and gagged the family and continued to search for money, but found little else of value in the house. Determined to leave no witnesses, Smith and Hickock briefly debated what to do. Smith, who was a ticking time-bomb, unstable and prone to violent acts in fits of rage, slit Herb Clutter's throat and then shot him in the head. Capote wrote that Smith later said, "I didn't want to harm the man. I thought he was a very nice gentleman. Soft spoken. I thought so right up to the moment I cut his throat." Kenyon, Nancy, and then Mrs. Clutter were also murdered, each by a single blast to the head. Hickock and Smith left the crime scene with a small portable radio, a pair of binoculars, and less than fifty dollars in cash. Smith later claimed in his oral confession that Hickock murdered the two women. When asked to sign his confession, however, Smith refused. According to Capote, Smith wanted to accept responsibility for all four killings because, he said, he was "sorry for Dick's mother." Smith added, "She's a real sweet person." For Hickock’s part, he has always maintained that Smith committed all four killings. On the basis of a tip from Wells (Hickock’s former cellmate), who contacted the prison warden after hearing of the murders, Hickock and Smith were identified as suspects and arrested in Las Vegas on December 30, 1959. Both men eventually confessed after interrogations by detectives. They were brought back to Kansas, where they were tried together for the murders. Their trial took place at the Finney County courthouse in Garden City, Kansas, from March 22 to March 29, 1960. They both pleaded temporary insanity at the trial, but local psychologists hired by the state evaluated the accused and pronounced them sane. The jury deliberated for only 45 minutes before finding both Hickock and Smith guilty of murder. Their conviction carried a mandatory death sentence at the time. After five years on death row at the Kansas State Penitentiary (now known as Lansing Correctional Facility), Smith and Hickock were executed by hanging just after midnight on April 14, 1965. Hickock was executed first. Smith followed shortly after. An interesting historical note is that the gallows used in their executions now forms part of the collections of the Kansas State Historical Society. When Capote learned of the quadruple murder, before the killers were captured, he decided to travel to Kansas and write about the crime. He was accompanied by his childhood friend and fellow author Harper Lee, and together they interviewed local residents and investigators assigned to the case and took thousands of pages of notes. It took Capote six years to write the book. When finally published, In Cold Blood was an instant success, and today is the second-biggest-selling true crime book in publishing history, behind Vincent Bugliosi's 1974 book Helter Skelter about the Charles Manson murders. It was later turned into a movie produced and directed by Richard Brooks, starring Robert Blake as Perry Smith, Scott Wilson as Richard "Dick" Hickock, and John Forsythe as Alvin Dewey. For those of you who are crime-novel enthusiasts, I cannot recommend the book and the motion picture enough. Buckle up. You are in for a wild ride.

IRS audits are down, but there are still some red flags that are sure to attract the attention of the IRS. In this podcast, I discuss them.

On April 9, 2018, the IRS published a press release entitled, "IRS reminds those with foreign assets about U.S. tax obligations." In this podcast, I highlight some of the key points emphasized by the IRS for those with foreign assets.

In this episode (the finale), I discuss how to reduce the risk of your content being stolen so that you position yourself in the safest place possible. First, learn how to use the DMCA offensively by understanding the takedown notice process. We’ve already discussed the elements. Remember: The best defense is a good offense. For sample "takedown notices," you can do a Google search for “takedown notice." Second, protect yourself from a copyright infringement claim. Don't make yourself a target.  As obvious as this might sound, don’t use copyrighted content on your website. The temptation to use copyrighted images that are freely available online can be overwhelming, but resisting the urge at all costs. By far, the most surprising development in the DMCA space is that it applies to comments posted on a website. In other words, if you allow users to post comments on your website, you should adhere to a strict DMCA compliance process to ensure immunity from claims in the event that a user infringes on a third party’s copyright by posting unauthorized content in the comments section of your site. If you allow anyone to upload anything to your site, you should comply with the Digital Millennium and Copyright Act (DMCA). One critical aspect of DMCA compliance requires registering an agent with the copyright office. This is the individual who will receive copyright complaints arising out of content posted by users of your site. Google has one as well as Facebook. Everyone has one. The agent must be registered with the copyright office. The U.S. copyright office has finally upgraded its registration system and brought it into the 21st century. It was once so antiquated that registration could only be done through snail mail. Thankfully, they launched an online DMCA agent registration system. It’s relatively simple to register and the fee is only $ 6 every three years. On the registration form, list the name of the agent (it can be an independent agent or you, as the site owner); the street address (no P.O. Box allowed); a phone number; an email address for the site; and all of the site owner’s online properties. If you work from home and are uncomfortable providing your home address, you can use a DMCA agent. This provides some privacy as the agent’s information is listed in lieu of yours. However, the business address must still be listed on the registration and if you keep a home office, having your home address published on-line for the entire world to see can be unnerving. In limited circumstances, you can petition the copyright office and they may allow the site owner to substitute a P.O. Box for his or her home address. If you are not registered, what are you waiting for? This is your ticket to taking advantage of the safeguards embedded in the DMCA. It’s like buying insurance and it costs a mere $ 6.

In this episode, I discuss the DMCA procedures, from takedown notice to counter notice to the time-line required to respond to a counter notice by filing a copyright infringement case in federal court. If you find the DMCA takedown procedures to be daunting, do not fret. Most attorneys do not resort to them until they have sent a cease and desist letter to the infringing party. Paraphrasing, the letter usually sounds something like this, “I’m John Doe and I represent Mike Smith, the copyright owner of ABC Course. It has come to our attention that you are selling Mr. Smith’s course in an unauthorized manner.” You then demand that the infringer remove the content immediately and cease using it. This, combined with the potential damages that the infringer faces if found liable in court, is usually enough to do the trick.

In this episode, I discuss copyright infringement, specifically the Digital Millennium Copyright Act, which applies to the internet. We’ll talk about what it is, how to use it to your benefit if someone has stolen your content, and how to protect your website if you allows users to post comments on it. Let’s begin with a bread and butter definition of copyright infringement. Copyright infringement is the use of works protected by copyright law without permission, infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works. As far as terminology goes, “infringing” is used instead of “stealing” or “pirating” in the statute. The idea behind copyright infringement is simple: If you create some work, you hold the rights publish and distribute that work. The copyright holder is typically the work's creator, or a publisher or other business to whom copyright has been assigned. If you take someone’s content without their consent, you are committing copyright infringement unless you have some kind of fair use defense. Copyright holders routinely invoke legal and technological measures to prevent and penalize copyright infringement. Copyright infringement disputes are usually resolved through direct negotiation, a notice and take down process, or litigation in civil court. If someone makes a copyright claim, they are entitled to damages from $ 200 per image up to $ 150,000. You may also have to pay the other party’s attorney fees if you lose. Shifting public expectations, advances in digital technology, and the increasing reach of the Internet have led to such widespread, anonymous infringement that copyright-dependent industries now focus less on pursuing individuals who seek and share copyright-protected content online, and more on expanding copyright law to recognize and penalize the service providers and software distributors. They are deemed to facilitate and encourage individual acts of infringement by others. Estimates of the actual economic impact of copyright infringement vary widely and depend on many factors. Now let’s segue into the Digital Millennium Copyright Act (DMCA). What is the DMCA? It’s a United States copyright law that criminalizes production and distribution of technology, devices, or services intended to circumvent measures that control access to copyrighted works (commonly known as digital rights management or DRM). It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet. It was passed on October 12, 1998 by the U.S. Senate and signed into law by President Bill Clinton on October 28, 1998. The DMCA extends the reach of copyright, while limiting the liability of the providers of online services for copyright infringement by their users. The DMCA also includes a safe harbor provision which protects websites from liability when it comes to copyright takedowns. For example, Facebook or any site that has user-generated content enjoys immunity from copyright infringement claims based on that user content, so long as they adhere to a strict compliance process. Some websites are profiting from the violation of copyrights but because of this loophole they are not held responsible. For example, music companies have urged Google to prevent searches of copyright infringing material by sending them a torrent of takedown notices, but despite these efforts, many top search results on Google are still these materials. There are three main abuses of the DMCA. First, fair use has been a legal gray area, and subject to opposing interpretations. This has caused disparity in the treatment of individual cases. Second, the DMCA has often been invoked overbearingly, favoring larger copyright holders over smaller ones. Third, the lack of consequences for perjury in claims encourages censorship. This has caused temporary takedowns of legitimate content that can be financially damaging to the legitimate copyright holder, who has no recourse for reimbursement. This has been used by businesses to block out or censor competition. Critical question: Can the DMCA be used preemptively to thwart people from stealing your content, or can it only be used after a violation to correct a wrongdoing? It can only be used after your content is stolen, not before. So, if you find your content on another site, you can use what are called “take down procedures” in the DMCA to get it removed. There are a lot of myths about copyright infringement that need to be dispelled. The biggest myth is that you can take copyrighted material and post it on your site without running afoul of copyright infringement laws so long as you include a link back to the original source. While the web is a sharing environment, this is false. To add insult to injury, a social media sharing button, like a Facebook, Instagram, or Twitter button does not alter this result. As chilling as this sounds, the existence of a social media sharing button is not a defense to copyright infringement. What if you request permission from the content creator to repost their content and they say, “yes?” Be careful relying on an oral promise because the person could later deny it and then it turns into a “he said, she said” debate in court. Getting the creator’s consent in writing is a better practice but technically speaking, an email from the creator consenting to reposting the content still doesn’t satisfy the copyright infringement rules. But the content creator would be hard pressed to justify a copyright infringement claim after expressly consenting to its' reposting in writing.

I'm a little slow in getting around to this one, but back on September 20, 2017, the Eastern District of Pennsylvania released a taxpayer-friendly opinion regarding the “willfulness” standard in FBAR penalty cases. In Bedrosian v. United States, Case No. 2:15-cv-05853-MMB (E.D. Pa., Sept. 20, 2017), the district court held that the government had not met its burden of proof in establishing that Bedrosian willfully violated his FBAR-reporting requirements. As a result, the court ordered the government to refund to Bedrosian a sum of $ 9,757.89, the amount that he paid in partial satisfaction of his allegedly willful violation of Section 5314. This opinion could have a ripple effect on the way the IRS reviews its offshore voluntary disclosure cases and may cause some taxpayers to rethink their strategy when it comes to deciding between the offshore voluntary disclosure program and the streamlined procedures. There is no blanket approach when it comes to addressing non-compliance vis-a-vis the FBAR and all cards should be left on the table before making a decision as important as this one.

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Navigating the rules and procedures of U.S. Tax Court is like trying to navigate the maze in the annual Triwizard Tournament at Hogwart’s School of Witchcraft and Wizardry. For those unfamiliar with the Triwizard Maze, it was populated by various obstacles and dangers that each Champion had to overcome. The first wizard to successfully navigate the maze and reach the Cup would be declared the winner. This podcast will highlight some of the dangers and pitfalls to avoid while navigating the largely self-governing Article I court.

Taxpayers who have few assets and little prospect of generating sufficient income to pay a tax liability in full may be allowed to strike a settlement for less than the full amount due to settle their case.  The IRSʼs acceptance of an offer in compromise conclusively settles the liability, absent fraud or mistake.  The policy goal is to achieve collection of what is potentially collectible at the earliest possible time and at the least cost to the government while providing taxpayers with a fresh start toward future voluntary compliance.

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The explosive growth in the crypto-currency sector has created “questions about tax compliance.” Back in March 2014, the IRS issued long-awaited guidance (IRS Notice 2014-21) labeling cryptocurrency, including Bitcoin, as “intangible property.” Investors and traders hold Bitcoin as a capital asset, as if it were a precious metal or corporate stock. Because it’s a capital asset, the IRS requires American resident taxpayers to report Bitcoin trading income and losses worldwide on U.S. resident tax returns. In other words, if you trade bitcoin, you must report capital gains to the IRS. It doesn’t matter whether you repatriate funds back to the U.S., or not. As far as accounting goes, investors and traders holding cryptocurrency should use capital gain or loss tax treatment on sales and exchanges, with the realization method. For example, if you buy Bitcoins with U.S. dollars and later sell them for U.S. dollars, a capital gain or loss needs to be reported on that transaction. Americans also trade Bitcoins on Bitcoin exchanges, and they should report realized capital gains and losses on each trade, even if the trader doesn’t convert underlying Bitcoin back into U.S. dollars. It’s similar to having a foreign-based brokerage account in a foreign currency (i.e., Euros), where a trader buys and sells European equities held in Euros, and does not convert Euros back to U.S. dollars during the year. There are two choices for tax reporting: Convert Bitcoin to U.S. dollars on each purchase and sale transaction using the Bitcoin market price that day in U.S. dollars, or use Bitcoin as a functional currency, using an average Bitcoin vs. U.S. dollar conversion rate for the tax year. Bitcoin and foreign bank account reporting U.S. residents with a foreign bank, brokerage, investment and another type of account (including retirement and insurance in some cases) who meet reporting requirements must e-file FinCEN Form 114, Report of Foreign Bank and Financial Account. If the aggregate or combined value of all of your foreign bank accounts is $10,000 (USD) or greater for the entire tax year, you must report these accounts on an FBAR because you have eclipsed the threshold for filing FinCEN Form 114. Just like foreign account holders don’t have to report precious metals in offshore safe deposit boxes, the conventional wisdom was that taxpayers also don’t have to report Bitcoin in virtual wallets. This was the view that IRS analyst Rod Lundquist espoused in June 2014, a date that seems like light-years ago now.  A lot has changed since then. While the IRS allowed taxpayers to exclude Bitcoin from their 2013 foreign bank account filings, it’s not clear if the IRS continues to allow an exclusion of Bitcoin, or Bitcoin derivative contracts on current year FinCEN 114 filings. When in doubt, due to the staggering penalties for non-compliance, I recommend including these Bitcoin accounts on FinCEN 114.

In this episode, I talk about the United States' system of worldwide taxation and the impact it has on U.S. citizens and residents. It was recorded a couple years ago but is still relevant especially now with tax reform taking center stage. Enjoy!

Learning Objectives: - Learn the purpose of the FBAR regulations - Determine who must file the FBAR - Determine the FBAR filing requirements - Determine who is exempt from the FBAR filing requirements - Understand the civil and criminal penalties that may be applicable for not complying with the FBAR filing requirements

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In response to criticisms of the IRS's collection practices, and in an effort to create a more traditional debtor-creditor relationship between the TP and the IRS, Congress created the CDP procedures in 1998. Under these procedures, before the IRS can levy on the property of the taxpayer, it must give the TP the opportunity for review of the IRS's collection actions by the IRS Appeals Division. This presentation examines both steps of the CDP process: (1) administrative review at the Appeals level and judicial review of the Appeals determination. It focuses on how to request CDP consideration, how CDP hearings are conducted by Appeals, and what types of issues the Appeals Officer must consider as part of the hearing. Court review in CDP cases covers the following topics: (1) court jurisdiction over CDP appeals, (2) can a TP voluntarily dismiss a CDP case?, (3) the standard of review in CDP cases, and (4) is review limited to the records of the CDP hearing at the administrative level.

As a rule, workers look forward to payday, even if their meager restitution isn’t as much as they would like it to be. Visions of sugarplums dance in their heads, or at least visions of one less bill emblazoned with the dreaded “Past Due, Please Remit” stamp.

The IRS Restructuring and Reform Act of 1998 overhauled tax controversy law. Nearly two decades after the enactment of the IRS Reform Act, the effects of many of these changes continue to be felt, making this an exciting time to study tax procedure. This webinar delves into the stages of a tax controversy from the filing of a return by the taxpayer through tax litigation. It also covers related topics, such as eggshell audits, tax preparer-client privilege, the attorney-client privilege in the tax realm, Kovel accountants, and representing your client before IRS Appeals.