NCJ Number
119635
Journal
University of Cincinnati Law Review Volume: 57 Issue: 3 Dated: (1989) Pages: 903-933
Date Published
1989
Length
31 pages
Annotation
This article reviews the ramifications of equating tax fraud with mail fraud.
Abstract
The U.S. mail fraud statute requires proof of two basic elements to sustain a conviction. It is necessary to show: (1) a scheme devised or intended to defraud or for obtaining money or property by fraudulent means; and (2) use of or causing to use the mail in furtherance of a fraudulent scheme. Flexibility in interpreting this statute is evidenced by the many cases charging mail fraud for every conceivable type of scheme. In addition to mail fraud being used as a charge for unusual schemes, the courts have permitted mail fraud charges when another criminal charge would be applicable. Title 75 of the Internal Revenue Code imposes penalties for evasive or fraudulent income tax returns. With no explicit language in this statute restricting it as the exclusive penal provision for fraudulent tax returns, it appears that these returns can be prosecuted as tax fraud, mail fraud, or both. Several ramifications are apparent in accepting the majority view that mail fraud is proper as an alternative to or in combination with tax fraud. In certain instances, this view may enhance the penalty imposed on a defendant. From both evidentiary and administrative standpoints, this view may provide an easier route to conviction. Foremost among the government's prosecutorial benefits derived from this view, however, is the recent use of tax offenses in the form of mail fraud in RICO (Racketeer Influenced and Corrupt Organization Act) prosecutions. In light of overzealous prosecutions and prosecutorial misconduct, it is concluded that tax fraud violations should be charged as tax fraud and not as mail fraud. 222 references.