“What’s the worst that can happen?” I get asked that a lot in the context of tax compliance.
Well, as of today, there’s this: you could be deported.
The Supreme Court has affirmed the ruling of the Ninth Circuit Court in KAWASHIMA v. HOLDER (615 F. 3d 1043, affirmed). In Kawashima, an immigration judge ordered the removal of resident aliens Akio and Fusako Kawashima following their convictions for tax-related crimes. Resident aliens are, generally, those persons who are in the United States lawfully but who are not citizens.
The facts of the case are not disputed: Mr. Kawashima violated 26 U.S.C. §7206(1), willfully making and subscribing a false corporate tax return, and Mrs. Kawashima violated 26 U.S.C. §7206(2), aiding and assisting in the preparation of a false corporate tax return. The Kawashimas stipulated (meaning agreed with the government) that the total actual tax loss was $245,126.
The immigration judge found that these crimes qualified as “aggravated felonies” and were grounds for removal (deportation). Under the law, an aggravated felony includes any offense that “(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or (ii) is described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the government exceeds $10,000.” The immigration judge found that the Kawashimas’ crimes involved “fraud or deceit” and thus satisfied the criteria for removal since “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable.” The Board of Immigration Appeals agreed and the Kawashimas appealed.
The Kawashimas made a number of arguments in their appeal. The crux of their position, however, was that the statute was not intended to apply to tax crimes. They argued that filing a false tax return did not involve “fraud or deceit” since, in order to secure a conviction, the government is not required to prove any intent to deceive. In that regard, their position was that lying or committing perjury isn’t equivalent to deceit. The majority of the Supreme Court did not agree and upheld the removal of the Kawashimas back to Japan.
Three Justices on the Court offered a dissent: Justice Ginsburg, Justice Breyer, and Justice Kagan. They felt that the ruling was overbroad and swept “a wide variety of federal, state, and local tax offenses—including misdemeanors—into the “aggravated felony” category.” They also felt that the decision would have the undesired effect of discouraging aliens from pleading guilty to tax offenses less grave than tax evasion, thereby complicating and delaying enforcement of the internal revenue laws.
The arguments were held in November of last year but the opinion was released yesterday. You can read the case as well as Justice Thomas’ opinion and Justice Ginsberg’s dissent here.
So, what do you think: Did the Supreme Court get it right?
