Can’t Wait?

Where the Department of Justice (DOJ) or the US Attorney has declined to authorize criminal proceedings, the letter declining prosecution will be reviewed by the Special Agent in Charge (SAC) office that initiated the prosecution recommendation to determine whether the declination should be protested and the case resubmitted to DOJ. To be effective, resubmissions to DOJ should normally be based on additional evidence and/or legal arguments overlooked by DOJ. Where there is a disagreement in judgment, the resubmitted case should be particularly strong from an evidentiary standpoint or be of significant import to the tax enforcement program.

In addition, the fact that DOJ notifies the taxpayer that the matter has been returned to Criminal Investigation at the time of the declination will not preclude a resubmission of the matter, or the subsequent prosecution of the case if prosecution is warranted. Taxpayers who contact either Criminal Investigation or the Criminal Tax attorney following the receipt of such notification should be advised that the matter is still under consideration for prosecution if a resubmission is contemplated, or that the case has been (or will be) returned to the Service for civil disposition as appropriate.

When the SAC determines resubmission is appropriate, the case will be returned to the Criminal Tax attorney for review and evaluation regarding a possible resubmission. The Criminal Tax attorney will notify the Area Counsel (CT) that he/she is in receipt of a resubmission. The Area Counsel (CT) will notify the Associate Chief Counsel (CT) of the resubmission.

If after reviewing the case, the Criminal Tax attorney concurs with the SAC’s decision to resubmit the case, the complete case file will be transmitted to the Associate Chief Counsel (CT) for review and evaluation. If the Criminal Tax attorney disagrees with the prosecution recommendation, he/she will prepare a criminal evaluation memorandum and return the case to the SAC.

The Associate Chief Counsel (CT) will review and evaluate the case and prepare a criminal evaluation memorandum. The criminal evaluation memorandum and the entire case file will be transmitted to the Director of Field Operations for coordination with the SAC.