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The Tax Man Cometh
The fact that FCPA violations carry the risk of significant U.S. tax law consequences is important throughout the year. Indeed, the tax consequence of FCPA violations is an issue U.S. law enforcement personnel are highlighting, as indicated by case filings and appearances by representatives of the Internal Revenue Service (IRS) at FCPA conferences. (At the January 2012 “FCPA Boot Camp” hosted by the American Conference Institute in Houston, Clarissa M. Balmaseda, a Special Agent in Charge of IRS Criminal Investigation in the Northern District of California, signaled the IRS's newfound willingness to step into the FCPA arena. American Conference Institute, “FCPA Boot Camp” at 4 (Jan. 2012) (on file with author). Another IRS representative, Debra Meyer, a Senior Agent in International Operations in the District of Oregon, spoke on the IRS' role in FCPA enforcement at the American Conference Institute's FCPA conference for the pharmaceutical, medical device and life sciences industry in May 2012. See American Conference Institute, “FCPA & Anti-Corruption for the Life Sciences” (May 2012) (on file with author).)
Introduction
Prosecution of tax violations connected to FCPA issues is nothing new, with the list of corporate and individual matters including United States v. Titan Corp., No. 05-CR-314-BEN, Information at 42-46 (S.D. Cal. 2005), United States v. Liebo, and United States v. Green, 923 F.2d 1308, 1310 n.1 (8th Cir. 1991), among others. See also United States v. Green, No. 08-CR-59(B)-GW, Second Superseding Indictment at 30 (C.D. Cal. Mar. 11, 2009); Morgan R. Hirst & Elizabeth H. Jenkins, Adding Insult to Injury: Tax Consequences of FCPA Violations, Tax Notes, 1074'75 (June 6, 2011). Potential tax liabilities can increase the costs of non-compliance with the FCPA's substantive standards and accounting provisions, and complicate corporate and individual FCPA settlement discussions. It has long been the case that that non-prosecution agreements and deferred prosecution agreements entered into by the U.S. Department of Justice (DOJ) of FCPA matters leave open the possibility of further criminal or civil tax prosecutions. (For the most recent language used by the DOJ. See, e.g., United States v. Smith & Nephew, Inc., No. 12-CR-00030, Deferred Prosecution Agreement at 5 (D.D.C. Feb. 1, 2012); United States v. Marubeni Corp., No. 12-CR-022, Deferred Prosecution Agreement at 7 (S.D. Tex. Jan. 17, 2012); In re Aon Corp, Non-Prosecution Agreement at 2 (Dec. 20, 2011); In re Deutsche Telekom, AG, Non-Prosecution Agreement at 1 (E.D. Va. Dec. 29, 2011); see also Hirst & Jenkins, note 3, supra at 1076.)
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