TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Saturday, July 21, 2018

Tax Probe Of Trump Foundation Faces High Bar For Criminal Charges

Wall Street Journal, Tax Probe of Trump Foundation Faces High Bar for Criminal Charges, Experts Say:

New York state is investigating whether the Donald J. Trump Foundation violated tax laws, according to a senior Cuomo administration official, and legal experts say the bar for any resulting criminal charges is high.

The state Department of Taxation and Finance is leading the investigation, which is examining whether the foundation or its officers, including President Donald Trump, broke state tax laws by transferring assets or making misrepresentations to the state that might affect tax liability, the official said.

The state tax department could issue a criminal referral to either the New York state attorney general’s office or the Manhattan district attorney’s office, the official said. The office that got the referral would decide whether to prosecute. ...

Legal experts say charging tax crimes, such as fraud, carries a high bar because prosecutors must prove that a defendant intended to deceive or commit wrongdoing.

“It’s not enough that you failed to pay your taxes,” said Harry Sandick, a former Manhattan federal prosecutor. “It isn’t even enough that you filled out the forms incorrectly. You have to do this with an intent to engage in criminal activity.”

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The article misses the point. Anyone subject to both civil and criminal actions regarding the same subject matter is put to a choice: testify in the civil matter and risk incriminating oneself, or plead the Fifth. This is the dilemma Mr. Trump may soon face unless the Supreme Court stays all civil and criminal actions against him, which may happen.

Posted by: Theodore Seto | Jul 21, 2018 2:58:57 PM