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My name is John DeLancett. I am an attorney who has been practicing in Florida for over 35 years. My primary areas of practice are: tax disputes, both civil and criminal, business disputes and litigation and real estate litigation. I have been an advocate of more legal education in our public schools. Unfortunately, this has either been ignored, or, alternatively, subverted into anti-drug or other programs. The purpose of this blog will be to occasionally provide notices of changes in the law that I consider to be significant and, from time to time, to comment on same. It may also be an opportunity for other legal professionals to kick around new legal issues that they encounter in their practice. This is not intended, nor should it be relied upon by anyone, as legal advice.
The Offshore Voluntary Disclosure Program 2009 The Offshore Voluntary Disclosure Program 2009 As many of you may already be aware the IRS has instituted a 6 month special voluntary disclosure program for individuals who have offshore / foreign accounts, or entities, including trusts and corporations. The IRS has recently issued "frequently asked questions" discussing how they will deal with various issues in this disclosure.
Can't Get Your Lender To Talk to You? - How About a Mediation? Two recent articles, one in the Orlando Sentinel and the other in the Florida Bar News, indicate that judicial remedies may be on the way to resolve one of the most common complaints of those whom are being foreclosed upon. That complaint is "I can't get the lender to talk to me, or respond to me!"
Recent Statistics on Tax Convictions Recent Statistics on Tax Convictions A recent article generated by Trac Reports Inc. in its "Tax Notes" dated April 7, 2008 reports on a number of interesting statistics about criminal tax convictions in 2007 and previous years.
Foreclosures, Short Sales, And Mortgage Restructuring: Out Of The Frying Pan, Into The Fire? You Are Creating A Tax Problem For Yourself. Foreclosures, Short Sales, And Mortgage Restructuring: Out Of The Frying Pan, Into The Fire? You Are Creating A Tax Problem For Yourself. A little known provision of the Internal Revenue Code, section 108, provides that, whenever there is a discharge of indebtedness, a Taxpayer may have to recognize income. When a Taxpayer borrows money, he does not report the sums received as income in that taxable year. As long as he repays the debt, there is never an income tax liability assessed upon the proceeds of the loan. However, if a Taxpayer fails to repay the full amount of the debt, he may suffer a number of tax consequences ranging from reduction of basis on the real property to actual tax liabilities.
Do I Need An Attorney To Handle My Tax Problem? Often times, people wonder whether they really need an attorney or whether an accountant can help them with their tax problems. Unfortunately, most people, including many accountants, fail to understand that, depending on the nature of the tax problem, the taxpayer's activities may subject them, at worst, to criminal liability and, at best, to potential disputes with the IRS. When Congress adopted the Federal Rules of Evidence, they could not reach agreement on legal privleges. Accordingly, Congress agreed that whatever privileges were in effect at common law at the time of the adoption of the Federal Rules of Evidence, those privileges would continue. However, at common law there was no accountant / client privilege. Accordingly, everything a taxpayer tells his accountant can be compelled to be disclosed in proceedings with the IRS, whether civil or criminal. While Congress did create a very limited tax practitioner's privilege, it does not apply if the accountant prepared the return or if the proceeding is criminal or has criminal potential. (Please see my article under the Articles Section of my web page ( http://www.DeLancettlaw.com/Articles.shtml)). However, case law, starting with a case called Kovel, has recognized a work product privilege when an accountant is retained by an attorney to assist the attorney in advising his client as to a proper course of action. Not surprisingly, the accountants who are retained by attorneys to assist them in these matters are referred to as Kovel accountants. In order for the privilege to attach, the client must retain an attorney and then the attorney retains the accountant as a consulting expert witness. Unfortunately, if the client has already met with the accountant or worked with the accountant in the past, it may be difficult to establish the privilege because it may be difficult to determine whether the accountant became aware of the information prior to or after the creation of the attorney / client relationship. Only those communications divulged to the attorney and the accountant after creation of the relationship are deemed privileged. They are deemed prvileged under the attorney / client privilege and under the attorney / work product privilege.Therefore, it is always best to consult with an attorney first. If the attorney deems your matter such that there is a low likelihood of litigation, either civil or criminal, then it may be safe to proceed with an accountant. However, you need to be sure that the accountant is knowledgeable and experienced in the areas of civil tax procedure and evidence. Also, you need to consider whether, if the efforts of the accountant are unsuccessful, you intend to pursue judicial remedies. In that case, it may well be in your best interests to retain legal counsel at the beginning of your matter. Finally, if you have any concern whatsoever as to criminal exposure, the only way to protect yourself is to consult with legal counsel. |
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