New York State Investigations of Trump and Related

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Re: New York State Investigations of Trump and Related

#76

Post by sad-cafe »

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but I will believe it when I see it
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Re: New York State Investigations of Trump and Related

#77

Post by Frater I*I »

much ado wrote: Thu Mar 11, 2021 5:11 pm I've been waiting so long. Please make indictments happen soon. :pray:
Patience Grasshopper...best they take their time and get a conviction, rather then go forward sloppy and allow him to get off...
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Re: New York State Investigations of Trump and Related

#78

Post by Gregg »

noblepa wrote: Thu Mar 11, 2021 2:02 pm Trump's financial holdings are slowly edging toward a cliff.

For now, they haven't fallen over the cliff, but when they do, I predict the dominoes will fall quickly. (Sorry to mix my metaphors).

I've never believed that he had a net worth of a billion dollars. He has plenty of assets, that may well total more than a billion dollars, but most of them seem to be mortgaged to the hilt. Indeed, he once proudly proclaimed that he was "the King of debt".

Some experts think that many of his assets are overvalued. I believe that that is a big part of the investigations currently going on in NY. He is alleged to have understated property values for tax purposes and overvalued the same properties when asking for a mortgage. That is either tax fraud or lending fraud, or both.

If, as some believe, his properties are overvalued and heavily mortgaged, they may actually be underwater, that is, have a negative equity.

I have also always believed that he may not only NOT be a billionaire, but he may actually be technically insolvent, and living off of cash flow.
I think the reason he didn't really divest his assets when he became President* was he knew he couldn't sell them in that short a time for anywhere near what he owed backed by the assets.
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Re: New York State Investigations of Trump and Related

#79

Post by neonzx »

Gregg wrote: Fri Mar 12, 2021 2:24 am I think the reason he didn't really divest his assets when he became President* was he knew he couldn't sell them in that short a time for anywhere near what he owed backed by the assets.
I think the general consensus is he was already under water, equity wise. That, in part, is why he hid his tax returns from us.
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Re: New York State Investigations of Trump and Related

#80

Post by fierceredpanda »

One thing I still don't quite understand: If Trump was understating the value of his assets to the taxman (to reduce his tax liability) and simultaneously overstating their value to his lenders (to increase the amount he could borrow), it seems vanishingly unlikely that Trump himself would have been the one actually valuing those assets. Sure, his signature is at the end of his tax returns and his ass is on the line legally. But unless he was sitting there assigning numbers out of a clear blue sky (and doing his own taxes - perish the thought!), it's pretty apparent that his lawyers and accountants (and not just Michael Cohen) would have had to have been involved in the fraud. I'm thinking along the lines of Arthur Anderson's complicity in the Enron fraud.

I'm certainly not naive enough to think that Biglaw firms like Jones Day and Morgan Lewis wouldn't break the law on behalf of their clients if it suited them (I'm the one who regularly referred to Biglaw behemoth Skadden, Arps, Slate, Meagher & Flom as the Skadden Crime Family on Old Fogbow, after all). But there's no way I can conceive that Trump did this on his own. Or am I missing something?
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Re: New York State Investigations of Trump and Related

#81

Post by Maybenaut »

fierceredpanda wrote: Fri Mar 12, 2021 7:38 am One thing I still don't quite understand: If Trump was understating the value of his assets to the taxman (to reduce his tax liability) and simultaneously overstating their value to his lenders (to increase the amount he could borrow), it seems vanishingly unlikely that Trump himself would have been the one actually valuing those assets. Sure, his signature is at the end of his tax returns and his ass is on the line legally. But unless he was sitting there assigning numbers out of a clear blue sky (and doing his own taxes - perish the thought!), it's pretty apparent that his lawyers and accountants (and not just Michael Cohen) would have had to have been involved in the fraud. I'm thinking along the lines of Arthur Anderson's complicity in the Enron fraud.

I'm certainly not naive enough to think that Biglaw firms like Jones Day and Morgan Lewis wouldn't break the law on behalf of their clients if it suited them (I'm the one who regularly referred to Biglaw behemoth Skadden, Arps, Slate, Meagher & Flom as the Skadden Crime Family on Old Fogbow, after all). But there's no way I can conceive that Trump did this on his own. Or am I missing something?
I don’t think you’re missing anything. I imagine if this case ever goes to trial we’ll be hearing about grants of immunity and/or co-conspirators.
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Re: New York State Investigations of Trump and Related

#82

Post by fierceredpanda »

Maybenaut wrote: Fri Mar 12, 2021 7:42 am
fierceredpanda wrote: Fri Mar 12, 2021 7:38 am One thing I still don't quite understand: If Trump was understating the value of his assets to the taxman (to reduce his tax liability) and simultaneously overstating their value to his lenders (to increase the amount he could borrow), it seems vanishingly unlikely that Trump himself would have been the one actually valuing those assets. Sure, his signature is at the end of his tax returns and his ass is on the line legally. But unless he was sitting there assigning numbers out of a clear blue sky (and doing his own taxes - perish the thought!), it's pretty apparent that his lawyers and accountants (and not just Michael Cohen) would have had to have been involved in the fraud. I'm thinking along the lines of Arthur Anderson's complicity in the Enron fraud.

I'm certainly not naive enough to think that Biglaw firms like Jones Day and Morgan Lewis wouldn't break the law on behalf of their clients if it suited them (I'm the one who regularly referred to Biglaw behemoth Skadden, Arps, Slate, Meagher & Flom as the Skadden Crime Family on Old Fogbow, after all). But there's no way I can conceive that Trump did this on his own. Or am I missing something?
I don’t think you’re missing anything. I imagine if this case ever goes to trial we’ll be hearing about grants of immunity and/or co-conspirators.
I guess the part I'm struggling with is this: What partner at Mazars or Morgan Lewis or Jones Day is going to say, "Yep! I'm willing to risk losing my license to practice my profession and going to prison to help a jackass who routinely stiffs people who work for him borrow a little more and pay a little less in taxes"? I mean, I get that there's a lot of "these are just not very smart guys, and things got out of hand" (to borrow Hal Holbrook's line from All the President's Men), but it seems like you would have to be a particularly credulous moron to think that this was a good idea going into it.
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Re: New York State Investigations of Trump and Related

#83

Post by keith »

One thing we have learned from insurrection day (and much before if we are honest) - is that Drumph-a-doodle-do is a master of 'plausible deniability'.

No matter what he does, its somebody else's fault when it blows up.

Just like the older brother that convinces his little brother throw the rock through Mrs. McGillicudy's window, it ain't his fault, he didn't do it, and you can't prove it.

Even though he spent a life time telling his cronies, "just make it happen", it isn't him doing it - its his cronies.

Hopefully the chickens are coming home to roost.
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Re: New York State Investigations of Trump and Related

#84

Post by roadscholar »

I think a missing piece of the puzzle is Offshore Accounts. It's highly possible that he's been squirreling away cash while letting the visible business interests flounder. And bribing accountants and lawyers with his actual untraceable cash.

The previous owner of our building did something similar. Somehow he mortgaged this complex way past its value*, failed to pay taxes and utilities for years on end, breaking every law or regulation that wouldn't bend. He operated an auction house out of these big empty spaces, disposing of assets seized by the City. When he sold out and split, it was discovered that for ten years or so he had neglected to turn over any proceeds to the city.

How did he get away with it? Turns out he was building a palace in Arizona, registered as his Primary Residence, because the IRS can't touch it. He bought art, 5-figure carpets, antique furniture, etc. Put in pools and jacuzzis. Sunk all his ill-gotten gains into that property and left town.

*(It was rumored that he had a couple banker buddies who helped him do this. An example: he borrowed $150,000 against the building for a new roof. Instead of a roof, a roofing business buddy slapped a coat of tar on the old one, and presumably they split the unused balance of the loan.)
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Re: New York State Investigations of Trump and Related

#85

Post by AndyinPA »

fierceredpanda wrote: Fri Mar 12, 2021 7:51 am
Maybenaut wrote: Fri Mar 12, 2021 7:42 am
fierceredpanda wrote: Fri Mar 12, 2021 7:38 am
I guess the part I'm struggling with is this: What partner at Mazars or Morgan Lewis or Jones Day is going to say, "Yep! I'm willing to risk losing my license to practice my profession and going to prison to help a jackass who routinely stiffs people who work for him borrow a little more and pay a little less in taxes"? I mean, I get that there's a lot of "these are just not very smart guys, and things got out of hand" (to borrow Hal Holbrook's line from All the President's Men), but it seems like you would have to be a particularly credulous moron to think that this was a good idea going into it.
Maybe not quite the same, but ask Micheal Cohen about that.
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Re: New York State Investigations of Trump and Related

#86

Post by Maybenaut »

fierceredpanda wrote: Fri Mar 12, 2021 7:51 am
Maybenaut wrote: Fri Mar 12, 2021 7:42 am
fierceredpanda wrote: Fri Mar 12, 2021 7:38 am One thing I still don't quite understand: If Trump was understating the value of his assets to the taxman (to reduce his tax liability) and simultaneously overstating their value to his lenders (to increase the amount he could borrow), it seems vanishingly unlikely that Trump himself would have been the one actually valuing those assets. Sure, his signature is at the end of his tax returns and his ass is on the line legally. But unless he was sitting there assigning numbers out of a clear blue sky (and doing his own taxes - perish the thought!), it's pretty apparent that his lawyers and accountants (and not just Michael Cohen) would have had to have been involved in the fraud. I'm thinking along the lines of Arthur Anderson's complicity in the Enron fraud.

I'm certainly not naive enough to think that Biglaw firms like Jones Day and Morgan Lewis wouldn't break the law on behalf of their clients if it suited them (I'm the one who regularly referred to Biglaw behemoth Skadden, Arps, Slate, Meagher & Flom as the Skadden Crime Family on Old Fogbow, after all). But there's no way I can conceive that Trump did this on his own. Or am I missing something?
I don’t think you’re missing anything. I imagine if this case ever goes to trial we’ll be hearing about grants of immunity and/or co-conspirators.
I guess the part I'm struggling with is this: What partner at Mazars or Morgan Lewis or Jones Day is going to say, "Yep! I'm willing to risk losing my license to practice my profession and going to prison to help a jackass who routinely stiffs people who work for him borrow a little more and pay a little less in taxes"? I mean, I get that there's a lot of "these are just not very smart guys, and things got out of hand" (to borrow Hal Holbrook's line from All the President's Men), but it seems like you would have to be a particularly credulous moron to think that this was a good idea going into it.
I think it’s possible that it happened by degrees. I also think it’s possible that some of the players were working with bogus information. But I can’t imagine that everyone involved was duped. I wouldn’t be surprised to see co-defendants or unindicted co-conspirators.
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Re: New York State Investigations of Trump and Related

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Post by zekeb »

For purposes of getting a loan, I would think the lender would want an appraisal. Perhaps the lenders didn't care because they didn't want to give His Majesty any grief. Now that the chickens have come home to roost, though..... I don't know how NY sets valuations for tax purposes, but I've lived in places where tax valuations did not reflect actual value in any way, shape or form.
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Re: New York State Investigations of Trump and Related

#88

Post by noblepa »

Gregg wrote: Fri Mar 12, 2021 2:24 am
I think the reason he didn't really divest his assets when he became President* was he knew he couldn't sell them in that short a time for anywhere near what he owed backed by the assets.

True, but I think that his arrogance played a yuge part in that decision. The rules don't apply to him.

From a practical standpoint, it would take several years to sell off holdings as extensive as his, even if he had a lot of equity in them and was willing to accept less than full market value. Even if he started selling assets the day after the 2016 election, he would probably still be doing it, more than four years later.

I'm not sure how a blind trust would have made any difference in his case. With a large stock portfolio, the owner can give a broker or other trustee, carte blanche to buy/sell stocks, so the owner might not even know what he owned. In Trump's case, his "empire" is mostly real-estate holdings, which are not easily traded. He would always know what he owned. The operators or the businesses would know what would and would not help him. Even if he had no day to day control of his holdings, he would know that certain actions he might take as POTUS would affect his businesses favorably or adversely.
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Re: New York State Investigations of Trump and Related

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Post by noblepa »

zekeb wrote: Fri Mar 12, 2021 11:12 am For purposes of getting a loan, I would think the lender would want an appraisal. Perhaps the lenders didn't care because they didn't want to give His Majesty any grief. Now that the chickens have come home to roost, though..... I don't know how NY sets valuations for tax purposes, but I've lived in places where tax valuations did not reflect actual value in any way, shape or form.
I'm no real-estate expert, by any means, but I think that commercial real estate, especially in a place like New York, can be difficult to appraise accurately. In a residential neighborhood, most of the houses will be of similar age, size and condition, making it easier to find "comps". "A four-bedroom two-story colonial, built in 1992, two blocks away, just sold for $xxx,xxx."

In New York, nearly identical buildings, two blocks apart might have radically different values. A Park Avenue address is worth more than some other streets.

Also, I think that, since the tax consequences are so important, and the land owners usually have deep pockets and can hire lawyers, they can probably contest valuations proposed by the city. If the city appraises a property too high, the owners, like Trump, are probably more able (and willing) to challenge the valuation than residential owners are. This means that property valuation is more subject to "negotiation" than in other circumstances.

Also, even if an "independent" appraiser is called in, someone like Trump would not hesitate to pressure the appraiser to give him the valuation he wants; high if he is applying for a loan; low if he is paying property tax. I wouldn't even put bribery past him.

In many cities, building inspectors are notoriously corrupt. You want your new building to pass inspection, slip the inspector a couple of hundred/thousand bucks, depending on the size of the project. I'm sure that property appraisers have been known to augment their income in similar ways.
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Re: New York State Investigations of Trump and Related

#90

Post by Kendra »

https://www.washingtonpost.com/outlook/ ... story.html
Civil suits may pry out the information we need to hold Trump accountable
The former president faces at least 10 lawsuits, and procedural rules he can’t dodge
:smoking: :pray:


Michael Cohen has been asked back for an *eighth* interview with the Manhattan DA's office as part of their criminal probe into Trump.
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Re: New York State Investigations of Trump and Related

#91

Post by Reality Check »

Maybe I am over simplifying things but I have never understood how Trump could not be guilty of the exactly the same crimes for which Cohen pleaded guilty of committing. Cohen didn't have the affair with Stormy Daniels. Trump did. The payoff made to her for silence was for Trump's benefit not Cohen's. Yes, the payoff money from a shell company Cohen set up but the money eventually came from Trump or Trump's campaign didn't it?
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Re: New York State Investigations of Trump and Related

#92

Post by humblescribe »

fierceredpanda wrote: Fri Mar 12, 2021 7:51 am
Maybenaut wrote: Fri Mar 12, 2021 7:42 am
fierceredpanda wrote: Fri Mar 12, 2021 7:38 am One thing I still don't quite understand: If Trump was understating the value of his assets to the taxman (to reduce his tax liability) and simultaneously overstating their value to his lenders (to increase the amount he could borrow), it seems vanishingly unlikely that Trump himself would have been the one actually valuing those assets. Sure, his signature is at the end of his tax returns and his ass is on the line legally. But unless he was sitting there assigning numbers out of a clear blue sky (and doing his own taxes - perish the thought!), it's pretty apparent that his lawyers and accountants (and not just Michael Cohen) would have had to have been involved in the fraud. I'm thinking along the lines of Arthur Anderson's complicity in the Enron fraud.

I'm certainly not naive enough to think that Biglaw firms like Jones Day and Morgan Lewis wouldn't break the law on behalf of their clients if it suited them (I'm the one who regularly referred to Biglaw behemoth Skadden, Arps, Slate, Meagher & Flom as the Skadden Crime Family on Old Fogbow, after all). But there's no way I can conceive that Trump did this on his own. Or am I missing something?
I don’t think you’re missing anything. I imagine if this case ever goes to trial we’ll be hearing about grants of immunity and/or co-conspirators.
I guess the part I'm struggling with is this: What partner at Mazars or Morgan Lewis or Jones Day is going to say, "Yep! I'm willing to risk losing my license to practice my profession and going to prison to help a jackass who routinely stiffs people who work for him borrow a little more and pay a little less in taxes"? I mean, I get that there's a lot of "these are just not very smart guys, and things got out of hand" (to borrow Hal Holbrook's line from All the President's Men), but it seems like you would have to be a particularly credulous moron to think that this was a good idea going into it.
From an accountant's perspective:

I am unclear as to how New York City assesses commercial property for property taxes, but I have gleaned that the assessed value is self-reported by the owners. There may be a complex formula that breaks down occupancy and other salient facts. There may be credits or reductions for improving or enhancing properties. So, I am sorta beyond my ken.

We need to know who reports this information. Who compiles the information? Does Mazars sign the returns, or does the chief accounting dude at the Organization sign them? Are there verifiable records to support positions taken on these tax filings? For estate tax purposes, steep discounts are taken when there is a lack of marketability, a minority interest, or other impediment that would delay a timely sale between willing seller and willing buyer. Whether these factors are relevant to New York property tax assessments, I do not know. Company bias tells us to minimize property tax values.

For lending purposes, the lender does not care if a property is owned by multiple entities. Each owner has to sign off on the loan docs, or there have to be personal guarantees by principals. One would believe that the lender would require more than one appraisal--perhaps even paying for one themselves just to make sure that the borrower's appraisal wasn't rigged when the loan amount is yuge. Borrower bias tells us to maximize building appraisals.

Then there is the value used for income tax purposes. That value is typically cost plus substantial improvements that extend the life or betterments that change the character of the property. Those costs are depreciated; buildings over 39 years; substantial improvements and betterments over anywhere from 7-39 years; land is never depreciated. How did the accountants determine the allocation among land, building, and the rest of the mix? Taxpayer bias tells us to maximize depreciation deductions.

So, it is at least plausible that there could be a large difference between what values are reported to the various authorities. If there is competent and objective support for the various conclusions, there should be no issues with an accountant or lawyer signing off on these forms, even if internal documents are fraudulently drafted if the outside professionals had no reason to believe or did not know they were false. Of course, there is no substitute for the old smell test if the same person prepares all the forms and sees large valuation differences. Gotta get into the workpapers to see if those concerns were addressed.

I find it highly unlikely that the former guy signed these returns himself, with the exception of his personal tax filings. These forms were signed by others--probably his CFO. This adds a layer of insulation, and makes it more difficult to pin any civil or criminal charges on him personally. I'll let the lawyers opine on this, however.

Lastly, accountants as well as lawyers enjoy a privilege for tax-related matters. That privilege is waived if the accountant or lawyer sign the returns as a paid preparer.
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Re: New York State Investigations of Trump and Related

#93

Post by jcolvin2 »

humblescribe wrote: Sun Mar 14, 2021 12:00 pm Lastly, accountants as well as lawyers enjoy a privilege for tax-related matters. That privilege is waived if the accountant or lawyer sign the returns as a paid preparer.
Just want to point out a couple of things about the privilege. For both lawyers and accountants, the privilege can encompass and protect tax advice and work for the client in controversy matters (audits, etc.). There is a "crime/fraud" exception to the privilege, which allows the government to obtain information from the attorney or accountant if his or her services were used (knowingly or unknowingly) by the client to commit a crime or fraud.

With respect to accountants, at least at the federal level, the privilege is a statutory creation (26 USC Section 7525). It is somewhat limited in scope: it does not protect anything in a criminal investigation (even if the same advice would have been protected in an ordinary civil tax audit) and also does not protect any advice given with respect to the promotion of a tax shelter. With respect to the tax shelter promotion prong, courts have been fairly liberal in their interpretation of what constitutes the promotion of a tax shelter, such that the government would have a basis to argue that any suggestions as to structures for reducing taxes might fall within this exception.

I have no idea as to whether New York State has an accountant/client privilege in tax matters or what it might look like.
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Re: New York State Investigations of Trump and Related

#94

Post by sterngard friegen »

A guy can dream, can't he? I've actually found letters this damaging in discovery in my real estate litigation.
MAZARS Letterhead
[date within statute of limitations]

Dear Mr. Trump:

This will confirm my conversation with you this morning. Allen Weisselberg asked us how we calculated the assessed value of your [insert building] for [relevant taxes] for the tax year [insert year]. He said that you disputed this amount because [insert building] was actually worth twice that for insurance and net worth disclosure purposes. Mr. Weisselberg said that because you disagreed with the report to property taxing authorities you intended to declare twice that value for insurance and other purposes and that the City of New York would never find out or care. Because this is a matter of significance and could implicate severe civil and criminal penalties if the reported and assessed value is ignored, I thought it important to have the referenced discussion with you and to confirm it in this later.

We valued the building for assessment purposes after a discussion with your son, Donald Jr., who said he was speaking for you. We took into account rental receipts and the current debt load, together with anticipated taxes and insurance. While yoiu claimed to have forgotten, we then went over these figures not only with Mr. Weisselberg but with you as well. You approved the amounts.

Please be very careful in what you report to your insurance carrier. The value should be the same as the value reported to the taxing authorities. As you may recall, we had a similar issue several years ago and were only able to avoid civil and criminal prosecution by paying a large penalty. We gave assurances then that this would not happen again.

I hope you and your family are well. And, one last matter. Please pay your bill. It has been in arrears for over 48 months.

Yours faithfully,

[name of cooperating witness]

For MAZARS
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Re: New York State Investigations of Trump and Related

#95

Post by MN-Skeptic »

This discussion reminds me of my beginning public accounting days, a year or two out of college (probably about 1976). I remember getting the tax information from one of our clients. He had recently married. I don't remember if he didn't provide the wedding date, or if I saw two different dates in the documents. I asked him what his wedding date was and he asked what difference it made. I told him that if he had gotten married prior to Jan 1, he could file a joint return with his wife and his taxes would be lower. He assured me he had gotten married before Jan 1. Ok. So that's how I prepared his return. But I always wondered.
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Re: New York State Investigations of Trump and Related

#96

Post by noblepa »

jcolvin2 wrote: Sun Mar 14, 2021 3:10 pm
humblescribe wrote: Sun Mar 14, 2021 12:00 pm Lastly, accountants as well as lawyers enjoy a privilege for tax-related matters. That privilege is waived if the accountant or lawyer sign the returns as a paid preparer.
Just want to point out a couple of things about the privilege. For both lawyers and accountants, the privilege can encompass and protect tax advice and work for the client in controversy matters (audits, etc.). There is a "crime/fraud" exception to the privilege, which allows the government to obtain information from the attorney or accountant if his or her services were used (knowingly or unknowingly) by the client to commit a crime or fraud.

With respect to accountants, at least at the federal level, the privilege is a statutory creation (26 USC Section 7525). It is somewhat limited in scope: it does not protect anything in a criminal investigation (even if the same advice would have been protected in an ordinary civil tax audit) and also does not protect any advice given with respect to the promotion of a tax shelter. With respect to the tax shelter promotion prong, courts have been fairly liberal in their interpretation of what constitutes the promotion of a tax shelter, such that the government would have a basis to argue that any suggestions as to structures for reducing taxes might fall within this exception.

I have no idea as to whether New York State has an accountant/client privilege in tax matters or what it might look like.

I am not an accountant, but my undergraduate minor is in Accounting and Business Law. I also worked for Ernst & Whinney (now Ernst & Young) for almost ten years, although not as an accountant or auditor.

I remember, about 30 years ago, taking a course in tax accounting. It was taught by a guy who was both a CPA and an attorney.

At the time, he made what may have been an overly broad statement that "there is no such thing as client-accountant priviledge, so if you're going to commit tax fraud, hire an accountant who is also an attorney". It is true that the AICPA's code of ethics requires that an accountant maintain confidentiality regarding his/her dealings with a client, but that, in court, an accountant can be compelled to testify against his/her client.

Was he wrong, or oversimplifying the situation? Has the law changed in the last 30 years?
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Re: New York State Investigations of Trump and Related

#97

Post by bbflatt »

The law changed. Specifically, 26 USC 7525 was added to the Code in 1998.
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Re: New York State Investigations of Trump and Related

#98

Post by MN-Skeptic »

noblepa wrote: Sun Mar 14, 2021 4:05 pm
I am not an accountant, but my undergraduate minor is in Accounting and Business Law. I also worked for Ernst & Whinney (now Ernst & Young) for almost ten years, although not as an accountant or auditor.
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My first job out of college, 45 years ago, was in the tax department of Ernst & Ernst.

Edited to add: My family used to laugh at that. I dated an Ernie my senior year in high school. I dated a different Ernie while in college. I did NOT marry an Ernie, though.
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Re: New York State Investigations of Trump and Related

#99

Post by fierceredpanda »

noblepa wrote: Sun Mar 14, 2021 4:05 pm I am not an accountant, but my undergraduate minor is in Accounting and Business Law. I also worked for Ernst & Whinney (now Ernst & Young) for almost ten years, although not as an accountant or auditor.

I remember, about 30 years ago, taking a course in tax accounting. It was taught by a guy who was both a CPA and an attorney.

At the time, he made what may have been an overly broad statement that "there is no such thing as client-accountant priviledge, so if you're going to commit tax fraud, hire an accountant who is also an attorney". It is true that the AICPA's code of ethics requires that an accountant maintain confidentiality regarding his/her dealings with a client, but that, in court, an accountant can be compelled to testify against his/her client.

Was he wrong, or oversimplifying the situation? Has the law changed in the last 30 years?
As others have stated, the law has changed slightly. Also, since he was not teaching a law school course, I think he was oversimplifying. The crime-fraud exception is a thing that exists, and privilege doesn't attach to criminal conduct just because an attorney is party to it. Now, if you fudge your numbers first, and then bring in the lawyer/accountant and tell them the truth, then they're expressly forbidden from telling anyone as long as the harm is already done.

(I related this tale on old Fogbow, but it's so good that I must share it again.) When I was in law school, my legal ethics professor directed our attention to something that was in the news around that time and was very helpful in illustrating the limits of the attorney-client privilege with regard to this sort of criminal or fraudulent conduct.

A nightclub burns down in Western Wisconsin under somewhat suspicious circumstances. However, if I recall correctly, the evidence of arson was thin or inconclusive, sufficiently so that it was probably unlikely that anyone was going to be prosecuted. The owner has a business attorney already, and he works with that attorney to file a claim with his insurer for the value of the club. At some point in that conversation, the owner out-and-out tells the lawyer (believing the conversation to fall within the scope of attorney-client privilege) that he hired a torch to burn the place down. I don't recall if the attorney filed the claim or slow-walked it, but the key thing is that the client told the lawyer this fact before the (fraudulent) claim was to be submitted by the lawyer. I do recall that the attorney was sufficiently concerned that he contacted the Wisconsin State Bar's ethics hotline. Their advice isn't definitive or dispositive, but getting their opinion and following their advice in a good-faith effort to do the right thing is a pretty good defense to a malpractice suit or a bar complaint. The bar ethics people told the lawyer he had a duty to contact the local DA's office and divulge what his client had told him. After he does so, the club owner is prosecuted for being a party to arson and (I think) a charge of insurance fraud. Club owner's criminal defense attorney immediately moves to suppress the incriminating statements from the business attorney citing attorney-client privilege. Eventually, the court denies the motion, the statements come in, and the guy gets convicted.

The key thing here was that the client's admission to burning down his own club was simultaneous with his soliciting the attorney to file an insurance claim that he knew to be fraudulent. Now, even had the attorney not found out until later that the claim was bogus, you could still make an argument that the right thing to do would be for the attorney to come clean and not be a party to the crime of insurance fraud. But in this case, the client's admission made the lawyer an active participant in the fraud, and no privilege could attach. If the client had filed the insurance claim on his own, gotten the proceeds, and then told the whole story to his lawyer, the lawyer would have had to shut up about it until the heat death of the universe, and (assuming the insurance company didn't find something the original investigation missed) the client would have gotten away with the fraud.

tl;dr: If you're going to involve an attorney in a fraud, you can only expect them to keep it secret if you do so after the fact.

Crap. Did this turn into a "how to get away with criming" lecture?
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Re: New York State Investigations of Trump and Related

#100

Post by Jim »

fierceredpanda wrote: Mon Mar 15, 2021 10:27 am Crap. Did this turn into a "how to get away with criming" lecture?
Not to me, looked more like a "how to make your lawyer dirty" lecture.
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