미국에서 조세범죄에 대한 조사와 수사 -미국 국세청(Internal Revenue Service)의 역할과 기능을 중심으로- = Criminal Tax Investigation in the United States: Focusing on the role and function of the Internal Revenue Service

다국어 초록 (Multilingual Abstract)

This Article examines the administrative investigation by the Internal RevenueService(hereinafter IRS). Not only has the IRS civil audit enforced taxpayers``compliance with tax laws, but it has resulted in the IRS criminal tax investigation inmany cases. Since the IRS has been granted summons power in its civil audit, the IRSis able to compel a taxpayer to give testimony or produce document by seeking the courtorder enforcing compliance with the summons even when the taxpayer refuses to do so. Such IRS civil audit is one of the various routes from which the IRS becomes suspiciousof tax fraud. If a Revenue Agent, who has conducted the civil audit, discovers anindication of tax fraud, then the audit should be suspended, and the case should betransferred to the Office of Criminal Investigation for the IRS criminal tax investigation. Since then, a Special Agent of the Office starts conducting the criminal tax investigationto obtain evidence for a criminal proceeding. One of the traditional methods of thecriminal tax investigation is to interview the taxpayer or witnesses. After the criminaltax investigation by the Special Agent completed, the IRS usually recommends a grandjury investigation or criminal prosecution of the taxpayer. One of the most critical issues here is if the taxpayer``s constitutional rights would beviolated by such IRS administrative investigation, because both the civil audit and the criminal tax investigation is conducted by the IRS, and the criminal investigationbecomes a basis for the criminal prosecution of the taxpayer. First, a taxpayer wouldbe able to argue that a Revenue Agent``s civil audit constitutes unreasonable search inviolation of the 4th Amendment to the U.S. Constitution when the taxpayer gavetestimony or produced his or her books, records, etc. to the agent who kept conductingthe civil audit even after discovering the firm indication of tax fraud. In this case,whether the taxpayer``s constitutional rights are violated depends on whether the agentactually discovered the firm indication of tax fraud, which should be distinguished fromthe first indication of such fraud. Secondly, a taxpayer, who is faced with the IRS``sexercising its summons power, may refuse to comply with the summons by asserting theprivilege against self-incrimination of the 5th Amendment to the U.S. Constitution. Federal district court would determine whether its order enforcing compliance with thesummons should be made, depending on if it should be allowed for the taxpayer toexercise his or her privilege. Finally, it is rare for the testimony given or the documentproduced by the taxpayer in the IRS criminal tax investigation to become inadmissibleunder the Miranda rule, in that such investigation does not constitute a custodialinterrogation. However, the Internal Revenue Manual requires the Special Agent to giveadministrative warnings to a taxpayer even when the Miranda rule is not applicable. The federal circuit courts have split over whether the agent``s failing to give suchwarnings to the taxpayer violates the taxpayer``s constitutional rights or not.