New Jersey Supreme Court Certified Attorney
 


 

NEW JERSEY LAWYER & MEDIATOR
DIVORCE AND COMMERCIAL LITIGATION AND MEDIATION

HACKENSACK
21 MAIN STREET-WEST WING
HACKENSACK, NJ 07601

 

 

Blinders Won’t Hide The Elephant
Divorce and Tax Fraud : 10 Sheridan Myths Exposed

by: Charles C. Abut, Esq - July 2008

New Jersey Family Law judges and lawyers learned much from Sheridan v. Sheridan, 247 N.J. Super. 552 (Ch. Div. 1990). In Sheridan, the court ruled that where evidence establishes intentional tax evasion, a judge must report such wrongdoing to the appropriate authorities.

The teaching of Sheridan remains clear and beyond dispute. Nevertheless, the ensuing 18 years of New Jersey matrimonial practice have led to various evasions, half-truths and massive denial, mostly leading to a “Don’t Ask, Don’t Tell” gestalt. This article suggests that putting on blinders will not hide the elephant in the room.

Actually, prudent matrimonial practitioners would be wise to construe Sheridan in the post-Enron climate of placing greater burdens on lawyers to report Acrimes”. Moreover, the present legal-ethical-moral environment is not likely to dissipate soon, especially after the current finger-pointing taking place in the subprime maelstrom roiling the financial markets.

The following 10 myths illustrate received illusions (delusions?) regarding Sheridan cases.

Myth #1: The failures to file tax returns or to pay taxes are only civil offenses, not crimes.
Fact: “Any person, who willfully fails to pay such estimated tax or tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $25,000 ($100,000 in the case of a corporation), or imprisoned not more than 1 year, or both, together with the costs of prosecution.” 26 U.S.C.7203.

Myth #2: Legal ethics have no bearing on Sheridan issues.
Fact: Under the New Jersey Rules of Professional Conduct: (1) A lawyer shall not counsel or assist a client in conduct that the lawyer knows is illegal, criminal or fraudulent, (2) A lawyer shall reveal such information to the proper authorities, as soon as, and to the extent the lawyer reasonably believes necessary, to prevent the client from committing a criminal, illegal or fraudulent act that the lawyer reasonably believes is likely to result in (a) death or substantial bodily harm, (b) substantial injury to the financial interest or property of another, or (c) a fraud perpetrated upon a tribunal, and (3) A lawyer shall not knowingly make a false statement of material fact or law to a third person or fail to disclose a material fact.

Myth #3: Prosecuting authorities, such as the Department of Justice and the Internal Revenue Service, have no interest in pursuing mere unreported/under-reported income cases.
Fact: In Boulware v. United States, 380 U.S. 343 (2008)(March 3, 2008), The controlling shareholder of a closely held corporation was convicted for criminal tax evasion and filing false income tax returns. The defendant pleaded guilty to tax evasion, resulting in a $228,000 deficiency. Although the District Court imposed a below-guidelines sentence of 250 hours of community service, three years of probation, a $250,000 fine and in-house alcohol abuse treatment, the Third Circuit deemed this inadequate. Because the sentence was unreasonable, it was rejected and remanded for resentencing.

Myth #4: Sheridan only applies to divorce cases.
Fact: In commercial litigation arising from breach of an employment contract, the trial court interrupted cross- examination to warn continued testimony could result in a criminal referral. The Appellate Division cited Sheridan with favor and emphasized that judges have a duty to report intentional misrepresentation of income. All Modes Transport Inc. v. Hecksteden, 389 N.J. Super. 462 (App. Div. 2006).

Myth #5 : Once a Marital Settlement Agreement is signed and all assets have been distributed, there is no after-the-fact Sheridan exposure.
Fact: “There is no contention that any term of the PSA violated any law, any expression of public policy endemic to family disputes generally, failed to protect the best interests of the children, or fostered non-disclosure of the family’s affairs to appropriate taxing authorities. Under these circumstances, we discern no standard of attorney care that was breached.” Lerner v. Laufer, 359 N.J. Super. 201 (App. Div. 2003).

Myth #6: The attorney-client privilege provides lawyers with complete Sheridan protection.
Fact: From State v. Ray, 372 N.J. 496, 500 (2004): “Public policy considerations have led the courts and legislature to include limited exceptions to the attorney-client privilege.” From Fellerman v. Bradley, 99 N.J. 493, 502, 493 A.2d 1239 (1985): “The crime or fraud exception expressly provides such privilege shall not extend...to a communication in the course of legal service sought or obtained in aid of the commission of a crime or a fraud. N.J.S.A. 2A:84-20(2)(a); N.J.R.E. 504(2)(a). This exception is a statutory recognition of a situation in which the purpose of the privilege would not be served by its enforcement. A lawyer cannot be properly consulted professionally for advice to aid in the perpetration of a fraud on a court. The claim of privilege is that of the client and a fraudulent object or purpose puts him beyond the scope of this protection.”

Myth #7: Binding arbitration is a safe way to deal with Sheridan problems
Fact: “An Arbitrator should withdraw from the process if the Arbitration is being used to further criminal conduct.” [http://www.jamsadr.com/welcome/arbitration.asp)]

Myth #8: A New Jersey mediation is a safe haven for Sheridan offenses.
Fact: “There is no privilege for a mediation communication that is.. a threat or statement of a plan to inflict bodily injury or commit a crime; or intentionally used to plan a crime, and there is no privilege if the mediation communication is sought or offered in a court proceeding involving a crime.” N.J.S.A. 23:C-6, New Jersey Uniform Mediation Act.

Myth #9: After the Statute of Limitations has expired, there is no Sheridan problem.
Fact: When a taxpayer files a fraudulent tax return and later files a non-fraudulent amended return, prosecution may take place at any time, regardless of whether more than three years have expired since the filing of the amended return, based on the authority of 6501(c)(1) of the Internal Revenue Code. Badaracco v. Commissioner, 464 U.S. 386 (1984).The statute of limitations for the IRS to assess and collect any outstanding balances does not start until a return has been filed. In other words, there is no statute of limitations for assessing and collecting the tax if no return has been filed.

Myth #10: Even when there are Sheridan issues, an innocent
spouse will be exonerated.
Fact: The wife was not eligible for the benefits of Innocent Spouse treatment under Internal Revenue Code Section 6015. Thus, the tax penalties, interest and liabilities in question were not solely attributable to the husband. The wife was deemed to have had actual knowledge of the understatements of income. This was because she was college-educated, she had access to the parties= joint bank accounts, she balanced the parties checkbook, she admitted to her status as a member of the parties= Limited Liability Partnership, and she failed to satisfy her duty to make diligent inquiry. Golden et us. v. Commissioner, TC Memo 2007-299 [2007].

Based on the foregoing, those who ignore Sheridan do so at their peril. Furthermore, additional Sheridan urban legends should now be laid to rest. These include the fanciful notion that Sheridan can only be triggered when live testimony is adduced in open court. And what of other sworn proofs, such as answers to interrogatories, deposition transcripts and certifications or affidavits? Nothing in Sheridan limits its applicability only to courtroom testimony. Nothing in Sheridan excludes other evidence provided under oath. To believe otherwise is to engage in contorted legal sophistry, or denial, or both. Another anecdotal fable is that Sheridan will not apply to fraudulent tax returns, if those returns are not actually entered into evidence. But this is a transparent ploy, precisely because the falsity of the returns can be shown in other indirect ways.

In the final analysis, why such hyper-sensitivity to Sheridan cases? The answer does not emanate from a holier-than-thou stance. Consider these 4 ideas:

  • Sheridan offenders are either criminals or stand to be prosecuted as such;
  • Some charged with crime wind up getting indicted, prosecuted or convicted. When they do, some will say anything to exculpate themselves. This may include perjury; it may include Aratting out” their attorney, or their arbitrator, or their mediator;
  • Without subjective value assessments about Sheridan offenders, each attorney=s choice should focus on intelligent decisions and personal risk assessment. Certainly, the reader is free to see it otherwise; and
  • When a Sheridan offender gets indicted, a lawyer, mediator or arbitrator might be named as a co-defendant for Aaiding and abetting”. Is this overly protective of one=s ass[ets]? Maybe. The reader may well act differently with her/his own ass[ets].

Someday, the Supreme Court of New Jersey may speak to these issues. Will it conclude that New Jersey mediations and arbitrations are safe harbors for tax and other crimes? Until then, New Jersey lawyers confronted with Sheridan issues can carefully assess (a) their role as officers of the court, (b) the New Jersey Rules of Professional Conduct and (c) the risk/reward ratio. Only then should they proceed, based on their own individual comfort levels.

Charles C. Abut practices in Hackensack and Springfield. He has been designated by the New Jersey Supreme Court as a Certified Matrimonial Attorney from 1998-2008, and as a certified civil trial attorney from 1984-1998. He is also a fellow of the American and International Academies of Matrimonial Attorneys.
.