Does a Letter from an Attorney to Your Employer Help?
Posted on: May 23, 2009 by: admin
Image by The Library of Congress via Flickr
In United States v. Waldeck, 909 F.2d 555 (1st Cir. 1990) the Court describes the following:
[16] On July 15, 1981, defendant filed an Employee’s Withholding Allowance Certificate (W-4) with his employer claiming single status and 30 allowances. He had filed two prior W-4s claiming single status with one and then two allowances. On March 15, 1982, defendant’s attorney, William D. Morris, wrote to defendant’s employer stating that because of the employer-employee relationship, the employer should not release any information about the defendant’s employment to any government agency, particularly the IRS, and that the employer should ignore any requests for information unless there was a subpoena, in which event the employer was to notify defendant.*fn1 On May 2, 1982, defendant wrote to the secretary of employer’s legal division and requested that the lawyer’s letter be attached to his W-4 and a copy put in his personnel file.
So Waldeck has an attorney helping him try to solve the withholding issue. Notice that what Waldeck wrote to his employer is now being used to prejudice him in the criminal case against him. Try to keep in mind that what you tell your employer will be used used against you later as needed by the government.
Continuing from Waldeck’s criminal case:
[17] On March 25, 1982, the IRS asked defendant his reason for claiming 30 allowances. His reply letter stated in effect that the W-4 was accurate, that the IRS could not change it and that his basic constitutional rights were being violated. The IRS then directed the employer to withhold taxes from defendant on the basis of single status and one allowance. The employer complied.
[18] Defendant went to work for a different employer on June 4, 1984. He immediately filed a W-4 claiming single status and 14 allowances. He switched jobs again on October 21, 1985; time his W-4 claimed 13 allowances.
Ah ha, so if you switch jobs that will also be used against you and how many allowances you take will be kept track of and used against you as well.
There is nothing noted about the exclusion of this evidence under Federal Rule of Evidence 403:
Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues…
Continuing from Waldeck’s criminal case:
Defendant had filed a fifth amendment return for 1981. On September 24, 1982, the IRS wrote him stating the 1040 form he filed did not comply with the Revenue Code and enclosed two income tax returns for filing properly. Defendant responded on December 9, 1982 stating in effect that he knew he had not sign a valid tax return for 1981 and that he was not going to do so. He also referred to excerpts from various United States Supreme Court decisions and asked questions about their scope and application.
Mr. Waldeck did not go about this as skillfully as he could have. With his questions he needed to put authority explaining the governments duty to respond. There is authority standing for the proposition that silence equals acquiescence even for the government; and for the proposition that the IRS must listen to Supreme Court authority. There are a number of post on this blog showing that IRS personell operate in a fiduciary capacity. Fiduciaries have a duty to answer questions truthfully raised by the beneficiaries.
Continuing from Waldeck’s criminal case:
On April 15, 1983, defendant wrote again to the IRS informing it that he did not pay taxes for 1981, that he filed only a fifth amendment tax return for that year, that he was filing a similar return for 1982 and that he was not going to pay taxes for 1982.
When writing the IRS you always want to keep in mind that what you send may end up being used in your cases with them in court.
Continuing from Waldeck’s criminal case:
The government’s successful criminal prosecution of defendant followed.
Continuing from Waldeck’s criminal case:
Courts have uniformly held that the filing of false W-4s constitutes evidence of a willful attempt to evade taxes in violation of 26 U.S.C. § 7201.
In United States v. Connor, 898 F.2d 942 (3d Cir. 1990), the court held that defendant’s “purposeful failure to file an accurate W-4 form could be viewed by the jury as an affirmative willful act to support the violation of 26 U.S.C. § 7201 comparable to the affirmative acts of evasion outlined in Spies v. United States,317 U.S. at 499, 63 S. Ct. at 368.” Id. at 945.
It could seem obvious from Johnson’s filing of blatantly false W-4 exemption claims in 1987, and his failure to file any tax return at all for that year, that he had a willful intent to avoid paying taxes then. The jury could reasonably infer from this that the improper filings in the years immediately previous were likewise infected by a tax evasion purpose. Id. A fortiori, the filing of false W-4s and returns giving none of the required information for the years charged in the indictment would be even stronger evidence of willfulness.
In United States v. Felak, 831 F.2d 794, 798 (8th Cir. 1987), the court held that claiming exemptions that were not justified was evidence from which tax evasion under § 7201 could be found.
In short, your employer doesn’t hire you so that they can take on your IRS issues at the cost of their bottom line. Most certainly they do not want to put themselves in jeopardy. Also, your employer is not going to listen to little ole you for advice on how to deal with the IRS. You will not be their favorite employee if you sue them. It is my position that the path of least resistance is through a Collection Due Process Hearing.
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