Niles Elber Comments on Marinello v. United States Decision

The fallout from the court's March 21 decision was a hot topic at the recent American Bar Association Tax Section meeting in Washington, DC. During a DOJ Tax Division update on May 12, Samuel R. Lyons, chief of the division's Criminal Appeals and Tax Enforcement Policy Section, discussed the government's post-Marinello litigating position.

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Niles Elber, a tax litigator with Caplin & Drysdale who moderated the panel at which Lyons spoke, told MLex® US Tax Watch he agreed that the "reasonably foreseeable" language will likely be broadly interpreted and heavily litigated, and it may be a while before the circuit courts provide some clarification.

Elber said he thinks Lyons' comments "can be viewed as a reluctant concession that the government was being too aggressive in their Section 7212 prosecutions, and they will need to rethink for the future the kinds of situations in which they want to apply the statute so as not to run afoul of Marinello."

If the government was being conservative in bringing tax obstruction cases before Marinello was decided, "I expect them to be even more conservative now," Elber said. "That's a good thing for defendants in criminal tax cases."

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Excerpt taken from the article “DOJ Official Discusses Government's Post-Marinello Strategy” by Kristen Parillo for MLex.