What Are the Warning Signs That My IRS Audit Has Gone Criminal?

Well number one are the facts. When we get an audit case in the firm, one of the first things we're looking for is any criminal risk to the client. Even innocent misstatements can be taken out of context or they can be construed in a different way and the biggest problem in any criminal case is proving the intent of the person so what we're looking for when we're looking at an audit situation is is there any evidence or anything that would suggest fraudulent intent. Usually we can screen that out in the beginning. So if you have a tax attorney on board, that's usually what our radar is up at initially. If you don't have a tax attorney on board or for some reason nobody caught it, which is rare, then here are things that you should look for. Number one, the auditor might be engaged in a fishing expedition. So oftentimes what you see in a criminal investigation is you see something called a parallel investigation and so that will be when you have a civil auditor who is conducting an audit and you have CI kind of working in the background. So a lot of the times if that civil auditor knows that he or she is going to refer the case to CI, they'll start gathering evidence and trying to do CI's job in the beginning. They'll seek to interview the taxpayer, they'll seek to get all the documents and records. They'll seek to put together as complete a file as you can so number one, you can see that if the auditor starts really digging it might be evidence that your case is going criminal. Number two, if the auditor disappears it might be evidence that your case is going criminal. When they see and they make a referral to CI and CI gets involved, a lot of the times the auditor will stop what they're doing and will disappear. So if you have a situation where the auditor just starts ghosting you for some reason, that's a sign that the case has gone criminal. So again if you have any reason to suspect that you may have any criminal liability in any sort of audit, which is what we refer to as an egg shell audit, then you need to tread very carefully. You need to put a plan in place, you need to limit the scope of information and you need to move as quickly through the audit as possible in order to minimize your liability and to prevent the case from turning.


Sam Brotman, JD, LLM, MBA

Owner and Director of Legal
Brotman Law