3L evening division student Michael Benison, a certified public accountant, has won second place in the 2018 Donald C. Alexander Tax Law Writing Competition, sponsored by the Federal Bar Association Section on Taxation and named in honor of a former Internal Revenue Service commissioner. Benison’s paper, “The Potential Implications of Marinello in Section 7212(a) Prosecutions,” addresses the current U.S. Supreme Court case Marinello v. United States, which will determine whether a person can be convicted for attempting to obstruct proper tax law administration if the person was unaware of a pending IRS investigation or proceeding.
Benison’s award, which includes a monetary prize, was presented at the FBA’s annual tax law conference in Washington, D.C. on March 9, where he received an honorary plaque and a complimentary, one-year membership with the FBA Section on Taxation. One of the panels at the conference, in fact, was devoted to the pending Marinello decision.
In his award-winning paper, Benison describes both the petitioner and respondent’s positions. Benison takes a minority stance on the Supreme Court case. While the majority of U.S. appeals courts has argued that conviction of the omnibus clause of Section 7212(a) does not require the defendant’s knowledge of a pending IRS investigation or proceeding, the Sixth Circuit rendered a dissenting judgment. It is with the Sixth Circuit that Benison agrees.
“The conviction should not be allowed if a defendant does not know that an IRS investigation is occurring,” said Benison, whose professional background includes over five years in public accounting specializing in real estate taxation.
In his paper, Benison argues that the Supreme Court’s ruling with the majority could result in an increased risk of prosecutorial overreach for vulnerable citizens who may not be aware of all of the intricacies of the internal revenue laws. Such a ruling, claims Benison, would necessitate safeguards to protect innocent taxpayers from being charged with a felony obstruction charge under the Section 7212(a) statute. According to Benison, anyone with incomplete records risks felony charges if the government can prove that the individual has satisfied the “corruptly” mens rea of the statute.
Benison observed how, recently, the government has wrought an increasing number of charges against people in violation of the statute.
“There have been more and more charges by the U.S. government,” said Benison, citing how a tax attorney/ former inactive certified public accountant was recently charged in the Southern District of New York. According to Benison, the increasing number of charges, along with the Supreme Court’s pending decision, makes his argument more urgent.
“It’s a hot topic to consider,” he said.
Benison’s paper was a product of his independent study with tax law Professor Jeffrey M. Colon. Benison said that the study helped both him and Colon consider unique legal issues to a complex area of the criminal tax code, and Benison urged his fellow classmates to pursue one-on-one research work with Fordham Law faculty.
“I suggest students do independent studies with their professors,” he said. “It’s an excellent way to examine novel legal issues with the School’s own outstanding experts.”
An abridged version of the paper was published in the September 2018 issue of The Federal Lawyer.