Nearly every nation has laws that protect its sovereignty; consequently, attempts by the United States to gather evidence within the borders of a foreign country have often be seen as encroaching on that particular nation’s sovereignty. Therefore, the Office of International Affairs evaluates methods for securing overseas assistance in gathering evidence on U.S. Tax Evaders. The principle legal mechanisms for gathering evidence from foreign sources are tax treaties/tax information exchange agreements, mutual legal assistance treaties and laws, simultaneous criminal investigation programs, and letters rogatory. By the terms of most tax treaties and exchange agreements, the information obtained can only be used for tax purposes. If the information is intended for any non-tax purposes then a separate agreement must be used to receive the information.
Conversely, mutual legal assistance programs can only be used to get information for the US criminal violations listed in the agreement. However, these agreements offer a wider variety of assistance, that is, from both judicial and executive authorities in the respective foreign country. Generally, the Attorney General is designated as the competent authority in the United States and thus all requests and actions must receive approval from his office although he has delegated this power to the Attorney General of the Criminal Division. Through these programs requested authorities may, 1) supply official records, 2) locate persons, 3) provide service of process, 4) execute searches and seizures, 5) arrange for the appearance of witnesses or experts before the relevant judicial body, 6) secure extraditions, 7) transfer accused persons to the United States, and 8) exchange relevant information to the laws, regulations, and international practices in criminal matters of the contracting state.
Simultaneous Criminal Investigation Programs (SCIP) are reserved for investigations that have the potential for substantial liability and that suggest the subject is or has committed violations in both countries. If an investigation is recommended and rejected it will be treated as any other routine investigation, but may be reconsidered if new facts are uncovered that suggest the SCIP program is appropriate. If an investigation is approved, a letter is sent to the appropriate authority seeking the foreign countries participation. If accepted, a meeting will occur between respective designees in the county where the request originated. Under this program, simultaneous indictments and/or filing of charges are preferred and thus close coordination is essential.
Where no international agreements are in place, letters rogatory may be employed to request the information. A letters rogatory is a formal request from a United States Federal Court, before which an action is pending, to the court of a foreign country where the information is located. Typically, letters rogatory can only be used in a post-indictment or post-complaint stage of the investigation. However, some jurisdictions allow the release of evidence where investigations have already been commenced. Moreover, there is case law to support a district court’s authority to issue letters rogatory for criminal cases that have not yet led to an indictment. The special agent in charge will work with the government attorney to petition the court to issue such letters.
