Trump, Tax Fraud, and the Statute of Limitations

By Sam Brunson

By now I’m sure you’ve read the New York Times story about the Trump gift tax evasion (or, if not that story—which is really, really long—at least a summary of it). There is a lot in there, and I suspect it’ll inspire more than a couple posts here, but I wanted to lead off with the statute of limitations.

Because let’s be real: I’ve always thought of the statute of limitations as being three years or, if you substantially understate your gross income, six years, unless you don’t file a return, in which case it runs forever until you file a return. Since most of the alleged fraud occurred in the 1990s or earlier, even the longer statute would be long passed.

It turns out that my mind entirely skipped over section 6501(c).[fn1] Section 6501(c) says that if you file a “false or fraudulent return,” there is no statute of limitations. The IRS can go in and assess a tax deficiency, with interest and penalties, whenever it wants.

Of course, the fact that the statute of limitations may not be closed yet doesn’t necessarily mean that the IRS is going to pursue Trump. He is, after all, the sitting president. And one major assertion the article made was that the IRS didn’t catch it the first time because the IRS was underfunded and understaffed; that hasn’t improved a ton.

Asserting fraud also places a significant burden on the IRS. Where the burden of proof is usually on the taxpayer to establish the correctness of her return, the IRS has the burden of proof where it asserts fraud and intent to evade tax. And proving fraud isn’t necessarily a light burden: the Tax Court has held that fraud requires the IRS to prove (a) the underpayment, and (b) “actual, intentional wrongdoing, … or the intentional commission of an act for the specific purpose of evading a tax believed to be owing” by the taxpayer.[fn2] And the IRS has to do so by clear and convincing evidence.

And there’s one further difficulty (represented by a circuit split): who committed the fraud? The Second Circuit has held that it doesn’t have to be the taxpayer (in this case, Fred Trump, who would have (or should have) filed gift tax returns and paid gift tax) who committed fraud. If the tax return preparer committed fraud, it’s still fraud, and there is no statute of limitations.[fn3] (And what if it was Donald who committed the fraud? I suspect that the Second Circuit could read its “return preparer” precedent to reach him, as long as he had a substantial part in preparing the returns.)

Presumably, it should be cut and dried, then. The Second Circuit governs New York, so its precedent, presumably, applies.

Only the split is with the Federal Circuit. And the Federal Circuit has nationwide jurisdiction. That is, if the IRS were to assert a deficiency, and Fred Trump’s estate were to pay that deficiency, it could sue either in a district court in New York or in the Court of Federal Claims. And appeals from the Court of Federal Claims lie in the Federal Circuit.

And what does the Federal Circuit say about fraudsters? That only the taxpayer’s fraud allows for no statute of limitations.[fn4] In other words, if the IRS were to assert fraud, it would also have to prove—by clear and convincing evidence—that the fraud was committed by Fred Trump, because unless it can prove that, his estate can choose to challenge the assertion under the Federal Circuit’s narrower standard.

[fn1] In my defense, I was sitting in my son’s capoeira class, reading the story on my phone, and evaluating things 100% on the basis of my memory.

[fn2] Price v. Comm’r, 71 T.C.M. (CCH) 2884 (T.C. 1996).

[fn3] City Wide Transit, Inc. v. Comm’r, 709 F.3d 102, 107 (2d Cir. 2013).

[fn4] BASR P’ship v. United States, 795 F.3d 1338, 1350 (Fed. Cir. 2015).