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38.2.1.6
(08-11-2004)
Criminal Evaluation Memorandum
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The criminal evaluation memorandum transmits the Criminal Tax attorney’s
evaluation of the merits of the criminal prosecution to the SAC. The memorandum
contains a thorough analysis of the case, an explanation of the recommended
charges, a discussion of the evidence available to prove the recommended charges,
a discussion of foreseeable problems and defenses whether raised by the taxpayer
or his/her counsel or determined by analysis of the case file, and the Criminal
Tax attorney’s concurrence or nonconcurrence with the prosecution recommendation.
The discussion should be limited to the legal analysis and details of the
particular case, and all documents submitted on behalf of the taxpayer are
forwarded with the memorandum.
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The criminal evaluation memorandum is more than mere paraphrasing of
the special agent’s report. It is an independent critical analysis of
the case, without undue reliance upon either the phraseology or conclusions
found in the special agent’s report. See Exhibit 38.3.1-10 at http://publish.no.irs.gov/getpdf.cgi?catnum=39139.
38.2.1.6.1
(08-11-2004)
Content and Style
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Although the content and even the style of the memorandum must be tailored
to the case, it should contain the information discussed in this subsection.
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Criminal Subjects. This section contains the name,
address, social security number and/or employer identification number of all
recommended parties referred by Criminal Investigation. If there are related
cases, the names of the related criminal subjects should also be provided.
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Counsel’s Recommendation. This section contains
Counsel’s recommendation as to the charge(s), year(s), number of count(s),
venue, and statute of limitations. (If the statute of limitations is imminent,
then the date should be bolded.) Counsel should state whether
prosecution is or is not warranted. If prosecution is recommendation, whether
the recommendation concurs with the Special Agent’s recommendation or
differs from the Special Agent’s recommendation.
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Executive Summary. In a nutshell, either in a
short paragraph or using bullets, summarize the subject’s actions that
give rise to the criminal prosecution recommendation, as well as relevant
information important to the reader. For instance, include or note: the amount
of tax dollars (including relevant conduct); harm to the government; the indirect
method of proof; an expiring statute of limitations; investigative techniques;
and, the technical tax issue(s).
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Criminal Violations. Discuss the principal evidence
available to establish the elements of the criminal offense(s). Subheadings
should be used for each element of the proposed charge. Items of evidence
should be set forth with bullets to separate and give the reader an idea of
how many exhibits/how much evidence there is on a given element.
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Discussion of the Law. Discuss any legal, procedural,
and/or policy issues regarding:
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Venue
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Statute of limitations
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How the investigation originated (when and by whom the taxpayer was first
contacted)
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Investigation techniques
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Aspects of personal history of significance to the case; age, marital
status during the years at issue (especially in community property states),
health (if a major problem is known), education, and criminal record
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Tax Loss, Computations, Method of Proof and Technical
Tax Issues. In this section the tax loss, computations and method of
proof should be noted and discussed when warranted. When applicable, tax or
tax-related issues or technical tax issues should be discussed.
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Current Lifestyle. In this section, update information
relative to each subject’s current lifestyle; job history; filing history;
and audit history. If this information is relevant to the case and not readily
available, then discuss this in the "Other Issues and Suggestions
"
section.
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Defenses. Discuss defense contentions or reasonably
probable defenses and available rebuttal evidence. When no defenses are foreseeable,
so note.
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Other Issues and Suggestions. Discuss problems/issues/concerns
with the case.
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Sentencing. In either a short paragraph or by
using bullets, summarize sentencing, including the aggravating or mitigating
offense related conduct.
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Conclusion. In this section note whether the evidence
relied upon to support the recommendation is sufficient to indicate guild
beyond a reasonable doubt and whether there is a reasonable probability of
conviction. In addition, note that Counsel is closing its file as of the date
of this memorandum.
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Signature of the Criminal Evaluation Memorandum.
Signature authority for criminal evaluation memoranda rests with the Area
Counsel (CT), unless delegated to the Criminal Tax attorney.
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Distribution of the Criminal Evaluation Memorandum.
The criminal evaluation memorandum is distributed as follows:
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The original criminal evaluation memorandum, along with the special agent’s
report and exhibits to the SAC
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One copy of the criminal evaluation memorandum, along with a copy of the
special agent’s report to the Area Counsel (CT)
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One copy of the criminal evaluation memorandum, along with a copy of the
special agent’s report to the Associate Chief Counsel (CT)
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