[HN Gopher] Taxation of illegal income in the United States
       ___________________________________________________________________
        
       Taxation of illegal income in the United States
        
       Author : bobbiechen
       Score  : 67 points
       Date   : 2022-04-16 01:56 UTC (1 days ago)
        
 (HTM) web link (en.wikipedia.org)
 (TXT) w3m dump (en.wikipedia.org)
        
       | highwind wrote:
       | Joker's take on the issue:
       | https://www.youtube.com/watch?v=QK0UxenfV4Q
        
       | jbrot wrote:
       | The section on marijuana is particularly interesting. You are
       | apparently allowed to deduct ordinary business expenses, even if
       | the business in question is illegal. However, Congress has
       | explicitly disallowed these deductions in the case of illegal
       | drug trafficking. Since marijuana is illegal federally, the
       | courts have ruled that medical and recreational marijuana
       | businesses that are legal under state law may not deduct any of
       | their ordinary business expenses from their federal taxes.
        
         | vmception wrote:
         | I wonder if that passed the 14th amendment's equal protection
         | clause. Curious how Congress' exception is written. Maybe if
         | they tied it to anything on the scheduled substances list then
         | it would pass the 14th amendment.
         | 
         | Edit: _> if such trade or business (or the activities which
         | comprise such trade or business) consists of trafficking in
         | controlled substances (within the meaning of schedule I and II
         | of the Controlled Substances Act) which is prohibited by
         | Federal law_
         | 
         | Ah yes, they wrote it that way. Ok.
        
           | KMag wrote:
           | It would be interesting to see this challenged for the case
           | where interstate commerce isn't involved. I know the federal
           | government has regularly asserted jurisdiction under the
           | premise that drugs that don't cross state lines still affect
           | interstate prices. I doubt it would be successfully
           | challenged, but it would still be interesting to see it
           | challenged. (I'm not a lawyer. This is not legal advice.)
        
         | mjthrowaway1 wrote:
         | Yes, it's brutal. With the Tax Cut and Jobs Act you can
         | incorporate more expenses in to indirect COGS but sales,
         | marketing, opex, admin are non-deductible.
        
         | chiefalchemist wrote:
         | Slight but important correction. These business are not legal
         | at the state level, their products are decriminalized. Since,
         | as you noted, they are illegal federally, the best states can
         | do is decriminalize. They cannot override the fed status.
        
           | gnopgnip wrote:
           | The omnibus spending bill, at the federal level
           | decriminalizes state legal medical marijuana. All prosecution
           | is prohibited
        
           | margalabargala wrote:
           | Federal drug enforcement has jurisdiction over the states
           | which have passed bills legalizing these products, and it is
           | the stated position of Federal drug enforcement that they
           | will not pursue any enforcement related to these substances
           | in these states.
           | 
           | Thus the products and the businesses are _de facto_ legal,
           | even if they are _de jure_ not.
        
           | rootusrootus wrote:
           | Has that actually been decided? The businesses are legal
           | under state law, and if they aren't selling across lines then
           | it's starting to get into gray areas on what enforcement
           | power the feds actually have. Which is probably why they
           | haven't really pushed the issue, because they have reason to
           | believe it wouldn't go their way.
        
             | zdragnar wrote:
             | So long as Wickard v. Filburn remains precedent, it is
             | really quite settled. The only question is if it will be
             | enforced. Since the states had voted to legalize it, it is
             | obviously politically unpopular to clamp down on them, but
             | they will likely continue to make the operational aspects
             | of these business very difficult (banking, credit card
             | processing, etc).
        
       | petilon wrote:
       | Tax rate for illegal income should be 100%.
        
       | vmception wrote:
       | Your tax exempt entities (retirement accounts, non profits) are
       | exempt from a lot of criminal liability because they dont have a
       | tax reporting dilemma.
       | 
       | If only Al Capone used a non profit right? Makes me wonder what
       | might be going on now.
        
       | Computeiful wrote:
       | In their examples section they mention how a double agent was
       | charged with tax evasion based on $2m of undeclared income from
       | bribes.
       | 
       | But if the agent WERE to mention the income on their tax
       | documents, even as "Unspecified due to 5th amendment protection"
       | that surely would be incriminating enough to cause further
       | investigation from the state. (I assume the US government keeps a
       | close eye on their agents papers).
       | 
       | I'm just not sure how you're supposed to declare ill-gotten gains
       | without 5th amendment worthy self-incrimination.
        
         | vmception wrote:
         | That's why they amended the constitution to collect income
         | taxes. The 16th amendment was necessary for a variety of
         | reasons.
         | 
         | The Supreme Court - the constitutional court - kept squashing
         | attempts to collect one.
         | 
         | It might not be important that it undermines your 5th amendment
         | right when the 16th amendment allows any means necessary - or
         | doesnt limit collection methods.
        
         | [deleted]
        
         | zauguin wrote:
         | The answers on
         | https://law.stackexchange.com/questions/76594/if-you-are-a-l...
         | strongly suggest that the IRS generally would not share these
         | papers with other law enforcement agencies (except under very
         | special circumstances).
        
           | formerkrogemp wrote:
           | They don't not share them out of the goodness of their
           | hearts. They're so intentionally understaffed and overworked
           | that they probably don't have time to refer all but the most
           | egregious cases.
        
           | inglor_cz wrote:
           | If the goal of the IRS is to collect as much tax money as
           | possible, they would, in such a case, have all the incentives
           | to _protect_ your illegal business from being busted.
        
             | R0b0t1 wrote:
             | The IRS has testified against the government on behalf of
             | defendants, but you are still open to harm from illegal
             | parallel construction.
        
               | nullc wrote:
               | The IRS couldn't manage to keep the detailed tax records
               | of every american out of propublica's hands... Does
               | anyone think they can keep them out of other agencies
               | hands?
        
               | natpalmer1776 wrote:
               | I would imagine that in cases where you're earning a
               | significant enough amount of money, the issue isn't
               | whether the government knows you're up to no good, the
               | issue is whether they have admissable evidence that
               | you're up to no good.
        
           | limaoscarjuliet wrote:
           | We should work under general provision: if data is gathered,
           | it will be used. Even if it is not legal today for IRS to do
           | something, it does not mean it will not be tomorrow. And law
           | unfortunately works backwards too.
        
         | doldols wrote:
         | Presumably investigating someone over that would violate their
         | 5th amendment rights, no?
        
           | ThePowerOfFuet wrote:
           | > Presumably investigating someone over that would violate
           | their 5th amendment rights, no?
           | 
           | You may wish to reread the 5th amendment.
        
             | doldols wrote:
             | Go on. How is forcing someone to testify against themselves
             | with the threat of criminal charges (tax fraud!) and then
             | using that information in a criminal investigation not a
             | 5th amendment violation.
             | 
             | I'm not a lawyer, I don't know anything. I'm just curious.
        
               | ThePowerOfFuet wrote:
               | The fifth amendment prevents forcing anyone to testify
               | against themselves, but does not stop investigations.
               | 
               | You asserted that the 5th should prevent an
               | investigation, but it will do nothing of the sort:
               | 
               | > Presumably investigating someone over that would
               | violate their 5th amendment rights, no?
        
               | doldols wrote:
               | I asserted that 5th amendment should prevent the
               | government from using this coerced testimony.
               | 
               | Would this not taint any investigation started on the
               | basis of coerced testimony? Why would the exclusionary
               | rule not kick in here?
               | 
               | As far as I understand in a criminal context no adverse
               | inference may be drawn from ones refusal to self-
               | incriminate. How would investigating someone for refusing
               | to self-incriminate to the IRS not be exactly that?
               | 
               | E: Found some related literature which I am reading now h
               | ttps://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?a
               | rt...
        
               | ThePowerOfFuet wrote:
               | >I asserted that 5th amendment should prevent the
               | government from using this coerced testimony.
               | 
               | Again, you did no such thing:
               | 
               | > Presumably investigating someone over that would
               | violate their 5th amendment rights, no?
               | 
               | An investigation can be initiated, and can proceed,
               | without any testimony whatsoever from the accused.
               | 
               | Which coerced testimony are you attempting to refer to?
               | The cops show up and ask you about your tax return, and
               | you say "". Either they continue to investigate you or
               | they don't, but you have not been coerced into saying
               | anything at all.
        
               | Supermancho wrote:
               | Obviously, you've been correct the whole way.
               | 
               | > Presumably investigating someone over that would
               | violate their 5th amendment rights, no?
               | 
               | >I asserted that 5th amendment should prevent the
               | government from using this coerced testimony.
               | 
               | This kind of revisionist interpretation, that a poster
               | will engage in to make an altogether different assertion,
               | is not uncommon on HN. Pointing it out gets downvoted,
               | overall making the conversations worse because it's
               | viewed as nitpicking, when it's really just trying to
               | avoid bad faith...wasn't there an article posted about
               | this recently?
        
               | formerkrogemp wrote:
               | If the government asks if you, Bill the graffiti artist,
               | painted any graffiti on the wall of a giant chicken, and
               | you said no. They could still apply a penalty for lying
               | to an LEO if that exists as a law if they can catch you
               | later.
        
               | doldols wrote:
               | Of course, but the fifth amendment only protects you from
               | self-incrimination if you explicitly invoke it (or keep
               | your mouth shut). Not if you lie.
        
               | saghm wrote:
               | Does this mean you could fill in illegal income in your
               | taxes and then for the source put down "I plead the 5th"?
        
               | Bilal_io wrote:
               | Then that would give them a reason to investigate.
               | 
               | They cannot ask you what you're pleading the 5th for, but
               | they can go investigate it, and nail you when and if they
               | find proof of illegal activity.
        
               | ThePowerOfFuet wrote:
               | >and you said no
               | 
               | You're assuming you have to answer them; the 5th
               | amendment allows you to refuse to respond in any way.
               | 
               | Refusing to respond isn't lying.
        
         | trhway wrote:
         | >I'm just not sure how you're supposed to declare ill-gotten
         | gains without 5th amendment worthy self-incrimination.
         | 
         | curiously, i think similar situation, yet different outcome -
         | "bad guys" aren't required to register their machine guns :)
         | 
         | https://en.wikipedia.org/wiki/National_Firearms_Act#Exceptio...
         | 
         | "The United States Supreme Court has ruled in Haynes v. United
         | States that the Fifth Amendment to the United States
         | Constitution exempts felons--and, by extrapolation, all other
         | prohibited possessors--from the registration requirements of
         | the Act. "
        
         | limaoscarjuliet wrote:
         | The idea is to have a legal basis to take your money (or part
         | thereof) away should you be convicted of said illegal activity.
        
       | badrabbit wrote:
       | Stupid question: can you report your income as illegal on purpose
       | in order to pay tax on it because you fear the wrath of the IRS
       | more than the police? If you don't specify the exact nature of
       | your crimes but only that you wish to pay them more money, will
       | you get audited or get in trouble with the police/DA?
        
       | chiph wrote:
       | At least one state wants their tax money from illegal income.
       | North Carolina has an Unauthorized Substances Tax, where you buy
       | a tax stamp covering your possession of the items (various drugs
       | and/or moonshine).
       | 
       | https://www.ncdor.gov/taxes-forms/other-taxes-and-fees/unaut...
       | 
       | From talking to folks I used to know at the Department of
       | Revenue, they have never sold any stamps to people in advance of
       | the cops arriving on the scene. Only to stamp collectors.
       | 
       | The tax rate for marijuana is $3.50 for each gram (or fraction
       | thereof) above 42.5 grams. Bulk spirituous liquor is $12.80 per
       | gallon.
        
         | R0b0t1 wrote:
         | Other states do this and even the federal government, I think.
         | They're shooting themselves in the foot. If the path to legal
         | possession is tortuous and likely to incriminate you then
         | you're protected from divulging it and your nonpayment of taxes
         | is wholly legal on the grounds attempting to collect makes the
         | state violate the 5th.
         | 
         | The widespread use of parallel construction -- and even merely
         | its plausibility -- means that the IRS's current stance on
         | reporting illegal income is likely suspect as well.
        
           | arcticbull wrote:
           | There have been a number of cases where the legality of
           | requiring tax payment on illicit income hinges on the state
           | tax authorities providing a means of paying said taxes
           | completely anonymously.
           | 
           | Of course they do not expect anyone to pay - this is merely
           | so they can Capone people. It's much easier to nail people
           | for tax evasion than for the actual crimes they committed in
           | a lot of cases.
        
           | gnopgnip wrote:
           | The irs is prohibited from sharing taxpayer info without a
           | warrant. There have been many cases in the past where your
           | fifth amendment rights have not prevented tax liability or
           | criminal charges for illegal income.
        
         | gwbas1c wrote:
         | > Only to stamp collectors.
         | 
         | Or to stamp "collectors?"
        
       | cat_plus_plus wrote:
       | Well, what's the alternative? Income is only illegal after trial
       | and conviction, and that may not be black and white. If you are a
       | gardener driving a truck that fails emission regulations, you may
       | at some point be fined, but otherwise you just pay taxes on your
       | earnings like everyone else?
        
       ___________________________________________________________________
       (page generated 2022-04-17 23:00 UTC)