For the Defense - Vol. 6 Issue 3 - 40

if the Commonwealth fails to provide requested
discovery, any required continuance will be on
the prosecution. If you have to follow-up with the
Commonwealth about discovery they have failed to
hand over, be sure to memorialize such requests in
a writing such as an email.
worth $10,000 or more to or from a private
wallet.28
* If a continuance is required due to the
Commonwealth's failure of diligence, be sure to
put that on the record at the time the continuance
is requested. Even if the judge does not rule in
your favor, you have at least preserved the issue for
appeal.
FinCEN also announced that it would soon
begin requiring all U.S. persons, i.e., U.S. citizens
and non-citizens living in the United States, with
ownership or control over a foreign wallet (hosted
or private) holding more than $10,000 to report
that information to the IRS on an annual basis
when s/he files his/her tax return.29
365-day period has elapsed. If the trial judge rules
against you and subsequently the Commonwealth
causes another substantial period of delay, file
a new Rule 600 motion based on this additional
time and litigate it prior to any trial to preserve an
objection to the additional time period.
These two additional reporting requirements will
make it difficult to maintain secret cryptocurrency
accounts. Individuals who have large amounts of
cryptocurrency will be unable to use it unless they
disclose its existence.
reported on their tax returns should consult with
a tax professional to determine the best method
by which to come into compliance. Individuals
who have substantial understatements of income
may need to enter the IRS Voluntary Disclosure
Program. However, unreported, undisclosed
cryptocurrency will soon have no utility.
* At the Rule 600 hearing, after the defense has
made a prima facie showing that the defendant
has not been brought to trial within 365 days,
the Commonwealth bears the burden of proving
that they have nonetheless acted with diligence.
This means that after the defense has made such
a prima facie showing, it is the Commonwealth
who should be required to put on its evidence
and the defense should only argue after the
Commonwealth has done so. Essentially, a Rule 600
hearing should proceed in form almost identically
to a suppression hearing. If the judge asks you
to argue prior to the Commonwealth's evidence,
make it clear that you could not possibly argue
on behalf of your client until you know what the
Commonwealth's evidence of diligence is.
NOTES:
1
Millennial millionaires have large share of wealth in crypto:
CNBC survey.
2 Rev. Rul. 76-214, 1976-1 C.B. 218.
3
The " coin and paper money of the United States or of any
other country that [i] is designated as legal tender and that [ii]
circulates and [iii] is customarily used and accepted as a medium
of exchange in the country of issuance. " 31 C.F.R. § 1010.100(m).
Bitcoin to become legal tender in El Salvador on Sept 7 |
Reuters
5
4
Notice 2014-21 (irs.gov)
See Section 13303(c) of Public Law 115-97, 131 Stat. 2054
(2017), commonly referred to as the Tax Cuts and Jobs Act.
7 202124008.pdf (irs.gov).
6
The Form is used for " payment card and third party network
transactions. " It is commonly issued by credit card companies to
merchants.
9
8
GAO, Tax Gap: Multiple Strategies Are Needed to Reduce
Noncompliance, GAO-19-558T (Washington, D.C.: May 9, 2019).
26 U.S.C. §§ 6662 & 6664.
11 26 U.S.C. § 6662(d).
12 26 U.S.C. § 6601(e).
26 U.S.C. § 6663.
10
13
14 26 U.S.C. § 6601(e).
40 For The Defense l Vol. 6, Issue 3
* If the Commonwealth appears at the Rule 600
hearing and does not present any evidence that
it acted with diligence-for instance, they did not
bring in the officer to testify to the attempts made
to find and apprehend the defendant-argue that
they have not met their burden because the burden
of proof includes the burden of production and
arguments of counsel are not evidence.
Individuals who own cryptocurrency which is not
weapon in your arsenal, but because a win means
discharge, it is a potent weapon that should never
be overlooked.
PANTONE
2955C
15 26 U.S.C. § 6601(e).
These entities must also keep reports of
transactions over $3,000 involving private wallets.
The proposed rule would require that banks and
MSBs gather, maintain, and report information
about customers engaging in virtual currency
transactions with unhosted wallets as well as
certain foreign jurisdictions with lax money
laundering laws. This rule effectively means that
anyone who attempts to use significant amounts
of cryptocurrency would have his/her personal
identifiers provided to the Treasury Department.
* All motions to dismiss pursuant to Rule 600 must be
made in writing.31
File your client's motion after the
NOTES:
1
CMYK
7406C
16 Siravo v. United States, 377 F.2d 469, 471 (1st Cir. 1967) (failing
90/78/39/30
Commonwealth v. Mills, 162 A.3d 323 (Pa. 2017).
2 U.S. ConSt. Amend. VI; PA. CONST. art. 1, § 9.
HEXIDECIMAL
#153A5B
#EAC137
to report Schedule C business imposed criminal liability for failing
to file an accurate tax return under 26 U.S.C. § 7206(1); a tax due
and owing is not an element of the offense).
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22/58/92
234/194/56
17 Siravo v. United States, 377 F.2d 469, 471 (1st Cir. 1967) (failing
3 Commonwealth v. DeBlase, 665 A.2d 427, 431 (Pa. 1995).
4
Barker v. Wingo, 407 U.S. 514, 530 (1972) (articulating the
constitutional test); Commonwealth v. Preston, 904 A.2d
1, 10 (Pa. Super. Ct. 2006) (the Barker test is an entirely
separate analysis from Rule 600 and therefore needs to be
raised separately).
Court Authorizes Service of John Doe Summons Seeking the
Identities of U.S. Taxpayers Who Have Used Virtual Currency |
OPA | Department of Justice.
Pa.R.Crim.P. Rule 600(2)(a); see also Commonwealth
v. Kearse, 890 A.2d 388, 395 (Pa. Super. Ct. 2005) (no
" prejudice " need be shown to obtain Rule 600 dismissal).
While Rule 600 has a more definitive time period, the sole
focus of Rule 600 is on the action of the Commonwealth.
Thus, a constitutional argument should be forwarded
when a delay prejudices a defendant and that delay was
primarily caused by the courts.
6 Pa.R.Crim.P. Rule 600(D)(1).
5
20
21
About the Author
Click here to view and/or print the
24 26 CFR § 1.6664-2, Example 4.
25
I.R.M. § 9.5.11.9.
26 26 U.S. Code § 7525.
The Financial Crimes Enforcement Network Proposes Rule
Aimed at Closing Anti-Money Laundering Regulatory Gaps
for Certain Convertible Virtual Currency and Digital Asset
Transactions | U.S. Department of the Treasury.
About the Author
IRS has begun sending letters to virtual currency owners
advising them to pay back taxes, file amended returns; part of
agency's larger efforts | Internal Revenue Service.
Court Authorizes Service of John Doe Summons Seeking
Identities of U.S. Taxpayers Who Have Used Cryptocurrency | OPA
| Department of Justice (April 1, 2021).
18
to report Schedule C business imposed criminal liability for failing
to file an accurate tax return under 26 U.S.C. § 7206(1); a tax due
and owing is not an element of the offense).
19
9/22/91/0
26 U.S.C. § 6501(e). The statute of limitations does not begin
to run until a taxpayer files a tax return. 26 U.S.C. § 6501(c)(3).
Thus, the period of assessment for non-filers is unlimited.
22 26 U.S.C. § 7609(e)(2).
23 26 CFR § 1.6664-2(c)(3).
27 full notes section for this article. See United States v. Kovel, 296 F.2d 918, 921-24 (2d Cir. 1961).
28
29 Filing Requirement for Virtual Currency (fincen.gov).
Katherine Ernst is an
appellate attorney with the
Montgomery County Public
Defender's Office. She
handles appeals from all
units, juvenile to homicide,
and she also formulates
legal strategy for pre-trial
PANTONE
Penn
PPen
en
2955C
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7406C
90/78/39/30
RGB
9/22/91/0
22/58/92
234/194/56
HEXIDECIMAL
#153A5B
#EAC137
and trial units. Katherine graduated Magna Cum
Laude from Loyola Law School, New Orleans
in 2007 and was on law review. She practiced
at Kaufman, Coren & Ress in Philadelphia out
of law school, and thereafter did work in the
intersection of horseracing law and §1983 for a
number of years before following her passion
for indigent criminal defense.
Share this article
Vol. 4, Issue 4 l For The Defense 9
Jed M. Silversmith is an
attorney at Blank Rome LLP.
He specializes in representing
individuals and accounting
firms in white collar matters
with an emphasis on tax and
forfeiture matters. Jed has
worked on a number of civil
and criminal matters at the administrative level, in Tax
Court and in federal courts throughout Pennsylvania.
Before joining Blank Rome, Jed worked at the U.S.
Department of Justice, Tax Division as a trial attorney.
https://www.justice.gov/opa/pr/court-authorizes-service-john-doe-summons-seeking-identities-us-taxpayers-who-have-used https://www.justice.gov/opa/pr/court-authorizes-service-john-doe-summons-seeking-identities-us-taxpayers-who-have-used-0 https://www.irs.gov/newsroom/irs-has-begun-sending-letters-to-virtual-currency-owners-advising-them-to-pay-back-taxes-file-amended-returns-part-of-agencys-larger-efforts https://home.treasury.gov/news/press-releases/sm1216 https://www.fincen.gov/sites/default/files/shared/Notice-Virtual%20Currency%20Reporting%20on%20the%20FBAR%20123020.pdf https://www.cnbc.com/2021/06/10/millennial-millionaires-have-large-share-of-wealth-in-crypto-cnbc-survey-.html https://www.reuters.com/technology/bitcoin-become-legal-tender-el-salvador-sept-7-2021-06-25/ https://www.irs.gov/pub/irs-drop/n-14-21.pdf https://www.irs.gov/pub/irs-wd/202124008.pdf

For the Defense - Vol. 6 Issue 3

Table of Contents for the Digital Edition of For the Defense - Vol. 6 Issue 3

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