Marc Stevens and "Insufficient Evidence"

[noblepa]

It is well-settled law that US citizens are liable for US income tax from their world-wide income, whether they are resident in the US or not. Just ask Boris Johnson, former mayor of London.

So, how about this hypothetical case. An expatriate US citizen, living in London, earns income from employment there and possibly from investments there, as well.

If that person fails to file a return, and the income is enough to attract the attention of the IRS, they may begin collection proceedings against that person.

Now, let's say that you are a Chartered Public Acountant in London, who handles the financial affairs of this US citizen. The IRS might very well subpoena your records pertaining to that person's income. No one has suggested that you have personally violated any US laws.

I imagine that the IRS would issue a subpoena to you. You would decline to provide the records. The IRS (probably via the State Department) would file a case in a UK court, asking that the court order you, pursuant to treaty, to provide the records. (I have to believe that there are treaties between the US and UK that allow either country to pursue potential witnesses).

I'm not sure about the UK, but in the US there is no such thing as client-accountant privilege, as there is for attorneys. An accountant CAN be compelled to testify or provide evidence against his/her client. It is true that an accountant has an ethical obligation to protect client information, but it is not sheltered in law, as it is for an attorney. So, the accountant can not claim the protection of that non-existent privilege.

So, in my hypothetical case, a UK resident/citizen can, with the approval of UK courts, be compelled to provide evidence to US authorities.

[Dr. Caligari]

The IRS (probably via the State Department) would file a case in a UK court, asking that the court order you, pursuant to treaty, to provide the records. (I have to believe that there are treaties between the US and UK that allow either country to pursue potential witnesses).

There is such a treaty, but the process is actually more cumbersome (and hence used only in the most serious or high-profile cases). The IRS asks the U.S. Department of Justice, who prepares the paperwork and gives it to the U.S. State Department. The State Department gives it to the British Foreign Office, who in turn gives it to the British Ministry of Justice, who then brings a court case in the U.K. If the British court decides that the requirements of the treaty are met, it will compel the British accountant to turn over his files, which will then be given to the Justice Ministry who will give them to the Foreign Office who will give them to the State Department who will give them to the Justice Department who will give them to the IRS. Start to finish, this takes about two years.

[Famspear]

......I'm not sure about the UK, but in the US there is no such thing as client-accountant privilege, as there is for attorneys. An accountant CAN be compelled to testify or provide evidence against his/her client....

Actually, there is a "federally authorized tax practitioner privilege" under U.S. Internal Revenue Code section 7525 that could apply as a sort of limited client-accountant privilege. It applies only in certain non-criminal matters.

And, as counter-intuitive as it may seem, to the extent (if any) that the accountant in the UK had actually received information from the client in the process of preparing a tax return for the client, the privilege would not apply. If the accountant in the UK had not been retained to prepare a tax return, then the communication from the client to the accountant might be covered under section 7525.

[Famspear]

Subsection (a) of section 7525 reads, in part:

(1) General rule--With respect to tax advice, the same common law protections of confidentiality which apply to a communication between a taxpayer and an attorney shall also apply to a communication between a taxpayer and any federally authorized tax practitioner to the extent the communication would be considered a privileged communication if it were between a taxpayer and an attorney.

(2) Limitations--Paragraph (1) may only be asserted in—

(A) any noncriminal tax matter before the Internal Revenue Service; and

(B) any noncriminal tax proceeding in Federal court brought by or against the United States.

(3) Definitions--For purposes of this subsection—

(A) Federally authorized tax practitioner--The term “federally authorized tax practitioner” means any individual who is authorized under Federal law to practice before the Internal Revenue Service if such practice is subject to Federal regulation under section 330 of title 31, United States Code.

(B) Tax advice--The term “tax advice” means advice given by an individual with respect to a matter which is within the scope of the individual’s authority to practice described in subparagraph (A).

Again, it is unclear whether this privilege would apply on the facts of the case described by noblepa.

[Famspear]

It may seem ironic, but if a given communication from the client to the British accountant had been provided for the purpose of having the accountant prepare a U.S. federal income tax return for the client, that communication might not be covered by the section 7525 privilege -- for the simple reason that if the client is filing a tax return, he is disclosing information to a person other than his attorney or other federally authorized tax practitioner.

And, if the communication from the client to the British accountant was NOT provided for the purpose of having the accountant prepare a U.S. federal income tax return AND was not provided for the purpose of having the accountant assist with some other United States related tax matter, then the accountant's service might not be a service covered under section 330 of title 31. Maybe the accountant was only preparing financial statements or rendering advice unrelated to U.S. federal tax matters, for example. The privilege might not apply on these facts, either!

[noblepa]

It may seem ironic, but if a given communication from the client to the British accountant had been provided for the purpose of having the accountant prepare a U.S. federal income tax return for the client, that communication might not be covered by the section 7525 privilege -- for the simple reason that if the client is filing a tax return, he is disclosing information to a person other than his attorney or other federally authorized tax practitioner.

And, if the communication from the client to the British accountant was NOT provided for the purpose of having the accountant prepare a U.S. federal income tax return AND was not provided for the purpose of having the accountant assist with some other United States related tax matter, then the accountant's service might not be a service covered under section 330 of title 31. Maybe the accountant was only preparing financial statements or rendering advice unrelated to U.S. federal tax matters, for example. The privilege might not apply on these facts, either!

When I posted, I was well aware that I was almost certainly oversimplifying things. My point, which you and others seem to have born out, is that, subject to certain limitations, it is entirely possible for the IRS or US law enforcement agencies to compel testimony or the production of evidence from non-resident foreign citizens. If it were not possible, there could be no cooperation in international law enforcement.

It was just that the poster seemed to be claiming that, as a UK citizen, there was no way that the IRS could compel him to produce his records. While it may difficult, that claim is clearly untrue.

In the case of Boris Johnson, former London mayor, someone in the UK must have disclosed to the IRS the sale price of his home, and other pertinent information regarding the sale.

[GaryBale]

A simpler and more true to life scenario, you live in the UK, or just are in the UK for that matter, you hack in to a server on US soil, for whatever reason, and they catch you at it and identify you, you are charged in a US court and an arrest warrant is issued, you are arrested in the UK on the US charge and extradited to stand trial for the crime you committed in the US never having set foot in the US, and you get to go to jail. That is how it works, in real life.

I'm not sure that's simpler as there's a treaty involved, and there may be a genuine civil claim for damages. I don't think there's much point in denying such events can happen, but these rely on local legislation. I have another scenario, that has occurred in real life and does focus on local legislation, but I'm saving that for another time.

Well, then -- stop being coy and bring it on, especially since it was probably on your mind all along. You're like so many others who pop up here in "just asking" mode and then turn out to have some more pointed reason for their questions.

I wasn't expecting the responses to the first question. Although few actually understood what I was asking, it does appear that nobody would ever question whether the legislation the defendant is alleged to have broken actually applies. Even if the legislation in question is a mix of Islam and the will of a tyrant, the response is to search for a solution in local code and hope one can be found.

Your response to a civil action would be to file a motion to dismiss based on the claimant's lack of standing. This seems similar to the first motion in the Edwards case linked earlier, which was denied for lack of merit, so that might need a re-think.

The second question would have be to look at instances like this (http://www.telegraph.co.uk/news/worldne ... ebook.html), or where legislation is introduced that would punish people for prior actions.

However, I've thought of something better;

What if somebody acted upon the fatwa and murdered Salman Rushdie in an unclaimed zone, or where no set legislation can be claimed superior to another, would it be a lawful killing?

[Dr. Caligari]

What if somebody acted upon the fatwa and murdered Salman Rushdie in an unclaimed zone, or where no set legislation can be claimed superior to another, would it be a lawful killing?

Answer: it depends, but it would probably not be a lawful killing. There are bases of jurisdiction other than "territorial jurisdiction" (which means that that the crime was committed on the soil of the prosecuting country).Various countries, to various degrees, apply doctrines like "nationality jurisdiction" (we have jurisdiction over acts that our citizens do anywhere) and "protective jurisdiction" (we have jurisdiction over crimes committed against our citizens, wherever and by whoever they are committed).

Some countries have statutes that prohibit their citizens from committing murder outside the country's borders. Switzerland has (or had) such a law, so if a Swiss citizen murdered Rushdie anywhere in the world, Switzerland could prosecute him in Switzerland. (I know about this quirk of Swiss law because I remember reading a case in law school where a Swiss citizen committed a murder in the U.S. and escaped to Switzerland before he was arrested. The U.S. requested extradition, but Switzerland refused because the defendant faced the death penalty in the U.S. Instead, Switzerland invited the U.S. to bring their witnesses to Switzerland; the defendant was tried in Switzerland, under Swiss law, where he was convicted and sentenced to 15 years.)

U.S. law makes it a crime, under certain circumstances, for foreigners to murder U.S. citizens outside the U.S. Many other countries have similar laws.

Under a principle known as "universal jurisdiction," most countries have laws allowing them to punish anyone who commits a murder on the high seas, so long as the prosecuting country catches the murderer. (The theory being that, since the high seas belong to no nation in particular, every nation has the right to keep the high seas free of murder. This principle is the foundation for the law of piracy.)

[Arthur Rubin]

What if somebody acted upon the fatwa and murdered Salman Rushdie in an unclaimed zone, or where no set legislation can be claimed superior to another, would it be a lawful killing?

(This was written before Dr. Caligari's post. It is less detailed in most areas, but has some different opinions.)

There are no unclaimed zones (except, on the high seas, not in a vessel, and possibly, in "outer space", under the "space treaty" or the "moon treaty". ) If a murder is committed outside the 200-mile limit, and not in a vessel, the choice of law to apply is probably that of who gets there first....

Some countries specify that murder of one of its citizens is a crime, no matter where committed.

I'm not sure discussing hypothetical legal situations approaching that believed by FMotL or Tax protestors is within the scope of this forum.

[Pottapaug1938]

I wasn't expecting the responses to the first question. Although few actually understood what I was asking, it does appear that nobody would ever question whether the legislation the defendant is alleged to have broken actually applies. Even if the legislation in question is a mix of Islam and the will of a tyrant, the response is to search for a solution in local code and hope one can be found.

Your response to a civil action would be to file a motion to dismiss based on the claimant's lack of standing. This seems similar to the first motion in the Edwards case linked earlier, which was denied for lack of merit, so that might need a re-think.

Two swings, two misses.

In the first case, it's not a question of "search for a solution in local code and hope one can be found". It's a case of "do we have any legal basis for recognizing this act of a foreign individual?" In the US, the bar of the First Amendment makes it unnecessary to consider other bases for refusing to enforce the Ayatollah's demands and actions. It would be up to the Ayatollah's laws to cite contrary Constitutional, case law and statutory support for the promise that a US court must hear his demands or enforce his judgments.

In the second, you fail to understand between "lack of standing" and "lack of merit". If I lack standing to bring an action in a given court or intervene in one of its proceedings, my case or cause may have all the merit in the world, but the court will not allow me to bring it into one of their courts.

[morrand]

What if somebody acted upon the fatwa and murdered Salman Rushdie in an unclaimed zone, or where no set legislation can be claimed superior to another, would it be a lawful killing?

(This was written before Dr. Caligari's post. It is less detailed in most areas, but has some different opinions.)

There are no unclaimed zones (except, on the high seas, not in a vessel, and possibly, in "outer space", under the "space treaty" or the "moon treaty". ) If a murder is committed outside the 200-mile limit, and not in a vessel, the choice of law to apply is probably that of who gets there first....

(emphasis mine)

Cecil Adams happens to have considered exactly this scenario in his most recent column.

I'm not sure discussing hypothetical legal situations approaching that believed by FMotL or Tax protestors is within the scope of this forum.

We do seem to have wandered a bit afield. This specific excursion might be more on-topic over in the SovCit forums, to the extent it helps refute some variations on the old "admiralty law" theory. If Marc's idea is that he's a man on the land and not subject to the law of the state within whose borders he resides, etc.—I can't be bothered to go back and check, now—there's a tenuous connection to the topic. But I'd agree we're slowly drifting away.

[GaryBale]

I wasn't expecting the responses to the first question. Although few actually understood what I was asking, it does appear that nobody would ever question whether the legislation the defendant is alleged to have broken actually applies. Even if the legislation in question is a mix of Islam and the will of a tyrant, the response is to search for a solution in local code and hope one can be found.

Your response to a civil action would be to file a motion to dismiss based on the claimant's lack of standing. This seems similar to the first motion in the Edwards case linked earlier, which was denied for lack of merit, so that might need a re-think.

Two swings, two misses.

In the first case, it's not a question of "search for a solution in local code and hope one can be found". It's a case of "do we have any legal basis for recognizing this act of a foreign individual?" In the US, the bar of the First Amendment makes it unnecessary to consider other bases for refusing to enforce the Ayatollah's demands and actions. It would be up to the Ayatollah's laws to cite contrary Constitutional, case law and statutory support for the promise that a US court must hear his demands or enforce his judgments.

In the second, you fail to understand between "lack of standing" and "lack of merit". If I lack standing to bring an action in a given court or intervene in one of its proceedings, my case or cause may have all the merit in the world, but the court will not allow me to bring it into one of their courts.

Are you saying the Ayatollah must cite US case law etc in order to succeed? Wouldn't that mean the Ayatollah's own legislation can not apply without US legislation to enact it?

In the Edwards case the first motion asks the court to strike because the IRS "lacks standing", and the judge refused the motion because the motion itself lacked merit. The question is if a "lacks standing" motion fails against the IRS, how would it succeed against the Ayatollah?

[GaryBale]

We do seem to have wandered a bit afield. This specific excursion might be more on-topic over in the SovCit forums, to the extent it helps refute some variations on the old "admiralty law" theory. If Marc's idea is that he's a man on the land and not subject to the law of the state within whose borders he resides, etc.—I can't be bothered to go back and check, now—there's a tenuous connection to the topic. But I'd agree we're slowly drifting away.

The assumption is that Marc Stevens files motions to dismiss based on lack of evidence that a specified set of legislation applies to the defendant . It's not "I am a man", "I wasn't driving, I was travelling" sort of stuff, so I don't think there's any connection with SovCit/FMotL, but it does require the possibility that the legislation may not apply.

In the case where Salman Rushdie is murdered in unclaimed areas, outer space etc, there may well be a group claiming the act is murder - but there's always one claiming the act is justice. Should an independent court making a judgement accept both sets of legislation as applicable without question, because surely the result is stalemate?

[notorial dissent]

The assumption is that Marc Stevens files motions to dismiss based on lack of evidence that a specified set of legislation applies to the defendant . It's not "I am a man", "I wasn't driving, I was travelling" sort of stuff, so I don't think there's any connection with SovCit/FMotL, but it does require the possibility that the legislation may not apply.

This is exactly what Stevens does, and it is a false assumption, that inevitably fails. Part of the hearing process is when the defendant is advised of the law(s) he has broken and what he did to break those laws. At which point the charges can be challenged. If the defendant or lawyer can show that the law doesn't apply then the case will be dismissed, something that seldom happens. It is NOT up to the charging entity to prove that the laws apply, it is up to the defendant to prove or show that they don't.

[wserra]

Sorry, nd, that's not exactly right. The prosecution, even at a preliminary stage such as arraignment, must show territorial jurisdiction - that the charged acts occurred within the jurisdiction of the court. In the case of an indictment, the grand jury having so charged is sufficient. In other cases, a cop or civilian complainant so swearing, in person or by affidavit, is sufficient.

Stevens claims that the prosecution need produce evidence that the law generally applies. That's complete nonsense, and - as you note - he has lost that point on every occasion a court has ruled on it.

[rumpelstilzchen]

Stevens claims that the prosecution need produce evidence that the law generally applies.

Is Stevens asking to be shown a law that states the law generally applies?

[wserra]

Is Stevens asking to be shown a law that states the law generally applies?

It's actually even dumber than that. He asks a legal question - "Does the law apply to Mr. Dumbass, not in his specific situation, but any law in general?"- for which he insists on a factual answer - evidence. I've asked him repeatedly to cite an answer he would accept. He can't, because there aren't any. That's when he starts posting pictures of people's kids.

[Cpt Banjo]

Stevens claims that the prosecution need produce evidence that the law generally applies.

Is Stevens asking to be shown a law that states the law generally applies?

Not really -- he's claiming that there is a law (call it L-1) that says the government is required to prove that the law that the defendant is accused of violating applies. So if the government wants to humor him, it can require Stevens to prove that L-1 applies to the government.

Of course this can go on forever, since Stevens could demand that the government prove that Stevens is required to prove that L-1 applies to the government, after which the government could demand that Stevens prove, etc.

This reminds me of the Hypergame Paradox. A "normal" game is one involving two players that is guaranteed to end after a finite number of turns. Examples include tic-tac-toe and chess. Hypergame has two rules: (a) the first played names a normal game and (b) the second player begins the play of the chosen game. Is Hypergame normal? Suppose it is. That means the first player can name Hypergame as the game to be played. But now that they are playing Hypergame, the second player can name Hypergame, after which the first player can name Hypergame, and so on. So the assumption that Hypergame is normal leads to the conclusion that it isn't. So that must mean that Hypergame isn't normal. But if it isn't, that means that Hypergame can't be chosen as the first move in a game of Hypergame, which means that Hypergame will end in a finite number of moves and will therefore be normal.

[wserra]

Banjo - the Hypergame Paradox has far more depth than Stevens' BS, which he just makes up as he goes along.

[Pottapaug1938]

Are you saying the Ayatollah must cite US case law etc in order to succeed? Wouldn't that mean the Ayatollah's own legislation can not apply without US legislation to enact it?

In the Edwards case the first motion asks the court to strike because the IRS "lacks standing", and the judge refused the motion because the motion itself lacked merit. The question is if a "lacks standing" motion fails against the IRS, how would it succeed against the Ayatollah?

Enough. If you want further answers to your hypotheticals, start your own topic.