A common parry in a tax criminal investigation or prosecution is to file a FOIA request with the IRS. The IRS / DOJ thrust is to resist. I provide at the end of this blog a general discussion of FOIA and the theories of resistance.
In Shannahan v. United States, ___ F.3d ___, 2012 U.S. App. LEXIS 5168 (9th Cir. 2012), enhanced opinion available to lexis.com subscribers with summary, headnotes, and Shepard's, (Non-subscribers can download the unenhanced official opinion of Shannahan v. United States, ___ F.3d ___, 2012 U.S. App. LEXIS 5168 (9th Cir. 2012) issued by the Ninth Circuit, the Ninth Circuit held that the attorney for two fugitives avoiding U.S. prosecution by their absence from the country could not obtain documents under FOIA that the IRS claimed were exempt from disclosure. The background facts are:
Although the Ninth Circuit did not reach the fugitive disentitlement doctrine, the foregoing paragraph certainly echoes the equitable concerns that the fugitive disentitlement doctrine is based on. It presents them in another context to explain how and when, if the Cheungs were not fugitives, they could get access to the documents. Basically, the notion is that, if they were not fugitives, they could get many, perhaps most of the documents, because (i) they would be disclosed in some appropriate context (either criminal discovery (including Brady and related concepts) or civil discovery in some civil proceeding) and (ii), in any event in a FOIA context, the IRS's claims of exemptions would likely be less compelling after the criminal proceeding was concluded.
Note that, among the charges, were FBAR charges -- false FBAR and failure to file. The events and the charges long preceded the Government's latest FBAR forays commencing with the UBS brouhaha and OVDP 2009. I will include the indictment in my spreadsheet when next I turn to it.
Finally, I offer here an excerpt from the current draft of my Federal Tax Crimes book dealing with FOIA:
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