Rule 32(i)(4)(A)(iii) of the Federal Rules of Criminal Procedure permits the Government to make a statement to the court at the time of sentencing. The United States Attorney’s Office should make a full statement of the facts, including the amount of tax that the defendant evaded for all relevant conduct, how the defendant perpetrated and concealed the fraud, the defendant's past criminal record, and all other information that the court may consider important in imposing an appropriate sentence.

As stated in the United States Sentencing Guidelines, see U.S.S.G. § 2T1.1, intro. comment, “because of the limited number of criminal tax prosecutions relative to the estimated incidence of such violations, deterring others from violating the tax laws is a primary consideration underlying [the] guidelines.” Because of the exceptional importance of general deterrence in criminal tax prosecutions, and because a sentence commensurate with the gravity of the offense acts as a deterrent to would-be violators, a sentencing recommendation advocating for a term in prison is almost always warranted in a criminal tax case. A court’s order of probation and a defendant’s payment of civil tax liability rarely constitutes a satisfactory disposition of a criminal tax case, especially because the IRS and the Tax Division considered the sentencing factors under 18 U.S.C. § 3553(a) in determining that the case warranted criminal prosecution.

Notwithstanding the foregoing, the United States Attorney may agree to a sentence of probation (preferably with alternative conditions of confinement) when: (1) the defendant pleads guilty; (2) the sentencing guidelines range is 0-6 months (and the defendant has a Criminal History Category of I); and (3) the United States Attorney personally signs and approves a written memorandum that identifies those unusual and exceptional circumstances that support the appropriateness of agreeing to probation. Examples of exceptional circumstances include the need to secure cooperation against a more culpable party or serious, post-indictment degradation in the evidence available for trial (such as the death of a witness or the loss or suppression of evidence). The United States Attorney’s Office must keep this memorandum in the case file and must forward a copy to the Tax Division when closing the case.

[updated February 2018]