The Criminal Investigation Division (CID) normally will grant the taxpayer or his representative a conference with the special agent’s group manager, a senior agent not connected with the case, or with the District Chief of CID before the special agent’s report is completed upon request. However, the IRS does not consider the conference to be a matter of right and there is no constitutional right to a pretrial conference. Since a conference is not required, effective tax defense counsel should make a written request for a conference as soon as he is retained.
CID grants conference requests as a matter of course believing them to be in the government’s best interest, since taxpayers and their counsel often make admissions or highlight weaknesses in the government’s case that can be remedied by additional investigation. Therefore, the Chief of CID for the district may offer a conference even when none is requested.
At the conference, the CID representative is required to inform the taxpayer of the alleged fraudulent features of the case, to the extent consistent with protecting the government’s interests. The CID representative must make available to the taxpayer sufficient facts and figures to acquaint him with the basis, nature, and other essential elements of the proposed criminal charges against him.
Since CID may attempt to use any inadvertent admissions by the taxpayer made at the conference. Most tax counsel, recommend that the taxpayer does not attend the conference. The investigating special agent often present and it is rare that a client is able to keep their composure while faced with the agent who may recommend that serious criminal charges be instituted.
Since the IRS may argue that counsel’s statements are vicarious admissions, counsel should bring a witness to the conference and state at the beginning of the conference that counsel is not authorized to make admissions of fact by his client. Factual representations should be couched in hypothetical language.
If the taxpayer tax defense counsel wishes to raise defense matters at the conference, it is wise to reduce them to writing. Even if the CID representative is not persuaded by the defenses raised, a record then exists to demonstrate to a court that the defense was raised at the earliest possible time and is not an afterthought. Sympathy factors such as a severe health problem should also be documented early.
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