Is Tax Evasion A Deportable Offense?
Q. I work two jobs, and my taxes were audited last year. I am not lawfully here. I am documented but trying to become a U.S. citizen. The IRS criminal division has accused me of tax evasion. I have two young children born in this country, and I fear I will be deported. Can the INS deport me for tax evasion
A. This depends on whether you are convicted of a crime involving “moral turpitude” by the INA. While there are extenuating factors, such as having naturally born children in this country, the INA will often look to the totality of the circumstances before deciding to pursue deportation.
The INS Has the Legal Authority to Deport
Under the law, the INA has the legal authority to deport a noncitizen convicted of a crime involving moral turpitude. Whether a particular crime involves moral turpitude depends on the law and, in particular, whether the offense involves what the law calls criminal intent.
Proving Criminal Intent and Moral Turpitude
Willful and Intentional Tax Evasion is a Deportable Offense
Under the current law, intentional and willful tax evasion is considered a deportable offense. However, unlike most deportable crimes, willful tax evasion may be very difficult to prove.
Evidence Supporting A Legal Finding of Criminal Intent
Having criminal intent means you specifically intended to commit the crime of tax evasion. Hallmarks of premeditation are proof of planning and specifically intending to commit a crime of defrauding the U.S. government.
Examples of Intentional Acts That Can Prove Tax Evasion
- Knowingly claiming personal expenses as business expenses intending to understate taxable income.
- Falsifying receipts and documents intending to understate taxable income or overstate expenses.
- Knowingly hiding or transferring assets or income with the intent to defraud the government.
- Knowingly creating a sham transaction to appear as a non-taxable event with the intent of defrauding the government.
- Intentionally under-reporting or omitting known income with the intent to defraud the government.
- Maintaining two sets of books and records with the intent to defraud the government.
- Making false and misleading entries to the books and records with the intent to defraud the government.
- Intentionally making false statements or intentionally overstating deductions and understating income.
Absence of Criminal Intent
Tax Avoidance
There are some good arguments you can make in defending your case. The most compelling is that you believed what you were doing was legal and, at most, amounted to tax avoidance.
Honest mistakes, even negligent accounting practices, can result in evasion allegations, but proving you acted willfully and intentionally concerning nonpayment of taxes is often problematic to prove – especially if you can demonstrate common ignorance in the tax process.
Unless the matter involves large sums of money or involves victims, or is an obvious case of willful evasion, the IRS will likely be willing to work with you so long as you are prepared to make restitution on your back taxes owed.
Your best defense is that your conduct was neither premeditated nor deliberate. Your conduct, at most, was tax avoidance which is legal. Without the prosecution proving the criminal intent, there can be no crime and, therefore, no crime of moral turpitude.
Tax And Immigration Attorneys
If you have questions about the information presented here or would like current information, reach out and consult with an experienced online immigration and tax attorney.
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