An issue sure to be encountered during a lengthy criminal investigation is whether or not the taxpayer should continue to file tax returns as they become due while the criminal tax investigation is pending. Under the circumstances any returns that are filed must be accurate or the taxpayer’s problems could be exacerbated with a charge of filing a false return. To further complicate matters, a taxpayer in this situation may have carryover items which are from years under investigation. Any currently truthful reporting of current income may confirm past underreporting or identify additional sources of income, when compared to the previously filed returns and carryover items. Since the privileges afforded by the Fifth Amendment against self incrimination do not justify the failure to file a return, both the taxpayer, his counsel and any “Kovel” accountant, must carefully consider how to proceed under the circumstances. I recommend utilizing lawful extensions of the filing due date to the extent possible and where not, one published creative approach is to calculate and pay any taxes currently due and deferring any currently due filings. However, this approach is not without risks as failing to file a return is in and of itself a crime.
