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38.1.3.8
(10-03-2007)
Miscellaneous Matters
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Seized Instruments. In the event a portion of the seized property consists of checks or other instruments such as money orders, bonds, cashier’s
checks, or airline tickets, the Criminal Tax attorney should request Criminal Investigation have the drawee bank certify them.
In a judicial forfeiture, the Criminal Tax attorney should also recommend to DOJ that the order of forfeiture be worded so
that the checks are endorsed in the Government’s favor.
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Department of Justice Policies. The Service follows DOJ’s aggregation rule when computing the value of seized property for purposes of determining whether
the judicial forfeiture requirement is triggered: judicial forfeiture must be initiated if the property seizure has a common
factual basis, legal authority, and common owner, and this aggregation exceeds the $500,000 (Title 18 forfeitures) or $100,000
(Title 26 forfeitures) threshold. Personal property constituting monetary instruments, as defined in 31 U.S.C. § 5312(a)(3),
can be administratively forfeited without regard to value. Additionally, the policy requires judicial forfeiture of otherwise
administratively forfeitable property seized in connection with property required to be judicially forfeited (e.g., furniture
seized along with a house or office) in a consolidated proceeding.
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Temporary Restraining Orders. Occasionally personal property, such as forfeitable funds located in accounts in financial institutions, is not presently
seizable because evidence is still being developed to establish the probable cause necessary to obtain a seizure warrant,
or because seizure authorization has not yet been obtained from the Department of the Treasury. To prevent such property from
being moved, a temporary restraining order (TRO) pursuant to 18 U.S.C. § 983(j), may be utilized. See also Fed. R. Civ. P. 65(b).
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A TRO will freeze access to the property for a period of up to ten days, at which point the Government must show cause for
the seizure at a hearing. The parties can extend the ten day period prior to the hearing.
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TROs can be granted without notice to the account holder and without a hearing, if a clear showing is made by affidavit that
immediate and irreparable injury, loss, or damage will result to the Government before a hearing can be granted, and if the
Government attorney certifies in writing the efforts, if any, made to give notice, and the reasons for not giving notice.
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Counsel’s assistance may be requested in preparing such affidavits.
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Use of Grand Jury Information. In cases where the use of confidential grand jury information is anticipated (e.g., to support seizure of property subject
to forfeiture or to sustain a judicial forfeiture), coordination with the US Attorney’s Office is required.
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Disclosure Considerations. Access to and disclosure of return or return information is subject to limitations contained in IRC § 6103. Therefore, the
Criminal Tax attorney must be alert to such issues, and should consult with Branches 6 and 7 in the office of the Associate
Chief Counsel (Procedure & Administration).
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Sealed Affidavits. Occasionally, Criminal Tax attorneys will be required to make recommendations concerning forfeiture matters in situations
where a court has sealed the affidavit. The Criminal Tax attorney should discuss the forfeiture matter with the affiant and/or
special agent assigned the case to determine the basis of the forfeiture action and should review Counsel files to see whether
there is a related or associated matter that might provide insight into the forfeiture in question. The attorney’s recommendation
should discuss the information relied upon in arriving at his/her recommendation.
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