One of the weapons in the arsenal of prosecutors pursing tax offenders is 26 U.S.C. §7212(a), which criminalizes “[a]ttempts to interfere with [the] administration of the internal revenue laws.” Section 7212(a) consists of two clauses: The first addresses conduct directed against IRS agents and employees enforcing the Internal Revenue Code, while the second, known as the Omnibus Clause, makes it a crime to “in any other way corruptly or by force or threats of force (including any threatening letter or communication) obstruct[] or impede[], or endeavor[] to obstruct or impede, the due administration of this title.”
In recent years the government has used the Omnibus Clause to reach acts beyond those that obstruct IRS audits or investigations. Last month, the U.S. Court of Appeals for the Second Circuit joined other courts of appeals in reading the Omnibus Clause expansively, holding in United States v. Marinello, 2016 WL 5956687 (2d Cir. Oct. 14, 2016), that Section 7212(a) can be violated without proof that there was a pending IRS investigation or proceeding, let alone that the defendant was aware of the IRS’s activity.
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