Tax Fraud & Tax Evasion Defense in Miami

That is why the most important moment in a tax case is often the moment a civil problem starts to look like a criminal one. Dennis Gonzalez Jr. is a former Miami-Dade prosecutor who has been defending people since 2012. Our practice is criminal defense: we defend people who are under criminal tax investigation or charged with a tax crime. Our office answers 24 hours a day.

How Tax Cases Start

• IRS civil audit vs. criminal investigation. A regular audit is a civil matter. Criminal tax cases are investigated by IRS special agents, who are criminal investigators. A civil audit can be referred to criminal investigators if the examiner sees signs of fraud.
• Signs a civil matter may be turning criminal: an examiner suddenly stops asking questions or stops returning calls, special agents show up at your door, your accountant or bookkeeper gets a subpoena, or bank records are subpoenaed.
• Florida Department of Revenue. Florida's DOR handles sales tax and other state taxes. A DOR audit of a business can lead to a criminal referral, and Florida law gives the department power to issue subpoenas for records and testimony to collect and enforce the taxes in Florida's sales and use tax chapter.
• Grand jury subpoenas and target letters in federal cases. See Economic & Financial Crimes.

If special agents contact you, that is a criminal matter. Do not answer questions until you have a lawyer.

Federal Tax Crimes

• Tax evasion (26 U.S.C. § 7201). Willfully attempting in any manner to evade or defeat any federal tax, or its payment. A felony: up to 5 years in prison, and the tax code lists a fine of up to $100,000 ($500,000 for a corporation), plus the costs of prosecution.
• Willful failure to file a return, keep records, supply information, or pay tax (26 U.S.C. § 7203). A misdemeanor: up to 1 year, and the tax code lists a fine of up to $25,000 ($100,000 for a corporation), plus costs of prosecution.
• False return (26 U.S.C. § 7206(1)). Willfully making and signing a return, statement, or other document under penalty of perjury that the person does not believe is true and correct as to every material matter. A felony: up to 3 years, and the tax code lists a fine of up to $100,000 ($500,000 for a corporation), plus costs of prosecution.
• Aiding or assisting a false return (26 U.S.C. § 7206(2)). Willfully aiding, assisting, procuring, counseling, or advising the preparation or presentation of a return, affidavit, claim, or other document that is fraudulent or false as to any material matter, whether or not the taxpayer knew it was false. This is the law most often aimed at return preparers. Same penalties as a false return.
• Failure to collect or pay over tax (26 U.S.C. § 7202). A person required to collect, account for, and pay over a tax who willfully fails to do so. A felony: up to 5 years, and the tax code lists a fine of up to $10,000, plus costs of prosecution. This is the law behind many payroll tax cases.
• Interfering with tax administration (26 U.S.C. § 7212(a)). Corruptly, or by force or threats of force, trying to intimidate or impede a federal officer or employee acting under the tax laws, or to obstruct or impede the administration of the tax laws. Up to 3 years (up to 1 year if committed only by threats of force).
• Conspiracy to defraud the United States (18 U.S.C. § 371). When two or more people conspire to commit a federal offense or to defraud the United States or any agency, and one of them takes an act to carry it out, each faces up to 5 years and a fine (no more than the misdemeanor maximum if the planned offense is only a misdemeanor).

Those are the maximums, not what every case gets.

Time limits for federal tax charges

The general time limit to bring a federal tax charge is 3 years after the offense. The law extends it to 6 years for many of the most common tax crimes, including evasion, false returns, aiding or assisting false returns, willful failure to pay tax or file a return (other than certain information returns), interfering with tax administration, offenses involving defrauding the United States, and conspiracy to evade tax. Time spent outside the United States, or as a fugitive, does not count. Figuring out when the clock started is a legal question.

Payroll and Trust-Fund Taxes

Employers withhold income tax and Social Security and Medicare taxes from employees' paychecks and must pay them over to the government. Because that money is held for someone else, it is often called "trust fund" tax. When a business is struggling, using withheld payroll taxes to pay rent, suppliers, or wages can seem like a short-term fix. If it is willful, it can lead to a charge under § 7202. These cases often turn on who had the duty and authority to pay, and what they knew.

Return Preparers

Preparers can face charges for returns they prepared even when the client didn't know about the false items. Common allegations include made-up deductions, false dependents, inflated credits, and fake business expenses. The defense often looks at what the client told the preparer, what documents the preparer had, how the software and office worked, and who actually entered the numbers.

Florida Tax Crimes

Sales tax: theft of state funds

Florida sales tax (and the other taxes in Florida's sales and use tax chapter) generally becomes state money at the moment it is collected. A person who, with intent to unlawfully deprive or defraud the state, fails to remit those taxes collected (or paid on behalf of a purchaser) commits theft of state funds. The grade depends on the total:

• Less than $1,000: second-degree misdemeanor (first-degree misdemeanor on a second conviction; third-degree felony on a third or later).
• $1,000 to less than $20,000: third-degree felony (up to 5 years).
• $20,000 to less than $100,000: second-degree felony (up to 15 years).
• $100,000 or more: first-degree felony (up to 30 years).

The amounts may be added together to determine the grade. Prosecution must begin within 2 years for a misdemeanor and 5 years for a felony.

Refusing to file or pay

Florida law also makes it a first-degree misdemeanor for a person required by the department to make a sales tax return and pay the tax due who refuses to do so, or refuses to state in writing that the return is correct.

Money penalty for failure to collect or pay over

Separately, Florida imposes a penalty of twice the tax on a person who willfully fails to collect or pay over certain state taxes (including sales tax), or willfully tries to evade them, and on corporate officers or directors with control over those taxes who willfully direct employees not to collect or pay them. This is a money penalty the Department of Revenue assesses, not a criminal charge, but the same facts can support both.

Reemployment tax

Florida's reemployment assistance law makes it a third-degree felony for an employer or its officers or agents to knowingly make a false statement, or knowingly fail to disclose a material fact, to avoid or reduce the contributions the law requires. Failing to file required reports, failing within 6 months after a written demand to keep required payroll records, or willfully failing to pay required contributions is a second-degree misdemeanor.

What Not to Do

1. Don't talk to IRS special agents or DOR investigators without a lawyer. Be polite, take a card, and say you want to speak with your lawyer first.
2. Don't amend returns, change books, backdate documents, or "fix" records without a lawyer's advice. Changes made after you learn of an investigation can look like a cover-up and can create new charges.
3. Don't let your accountant or bookkeeper speak for you to investigators until a lawyer has decided how to handle it. Communications with an accountant may not be protected the way communications with your lawyer are.
4. Don't move money or assets in response to an investigation.
5. Don't ignore a subpoena or a deadline.

Voluntary Disclosure

Sometimes people who have not yet been contacted want to come forward and fix past problems. There are ways to do that, but timing, eligibility, and risk are complicated, and coming forward the wrong way can create the very case you were trying to avoid. Any voluntary disclosure must be discussed with counsel first.

Defense Issues We Look At

• Willfulness: mistakes, bad advice, poor records, and honest misunderstandings of the law are not willful violations.
• Reliance on a professional: what the person told their preparer and what the preparer did with it.
• The tax loss: how the government calculates the amount can drive the charge and the sentence.
• Who was responsible for filing, paying, or collecting.
• The time limit: whether the charge was brought in time.
• How the evidence was gathered, including statements made during a civil audit.

Related Pages

• White Collar Crimes
• Economic & Financial Crimes
• Money Laundering and Structuring
• PPP and EIDL Loan Fraud
• Self-Surrender
• Immigration Consequences: tax crimes can carry immigration risk for non-citizens.

Why Choose Dennis Gonzalez Law, P.A.

• Former Miami-Dade prosecutor.
• Defending people since 2012.
• Super Lawyers recognition and an Avvo Rating of 10.0.
• Bilingual office — se habla español.
• We answer 24 hours a day. Call (305) 209-0384.

You can read about some of our past cases on our Results page.

Frequently Asked Questions

Can I go to jail for owing taxes?

Not for simply owing. Tax crimes require willful conduct, such as evading tax, filing a false return, or willfully failing to file or pay. Owing money alone is a civil matter.

Two IRS agents came to my house. Is this an audit?

If they are special agents, it is a criminal investigation. Don't answer questions. Take their card and call a lawyer.

My business didn't pay over sales tax it collected. Is that a crime in Florida?

It can be. Failing to remit collected sales tax with intent to deprive or defraud the state is theft of state funds, graded by the amount.

I prepared returns for clients. Can I be charged even if they didn't know?

Yes. Aiding or assisting a false return is a crime whether or not the taxpayer knew of the false item. Your intent is what matters.

Should I amend my returns now?

Not before talking to a lawyer. The timing and method matter, especially if an investigation may already be under way.

How fast can you help?

Our office answers 24 hours a day. Call (305) 209-0384.