Michael Sardar of Kostelanetz & Fink LLP said the Varsity Blues prosecutors may have considered using tax charges, but the lack of tax obstruction charges isn’t surprising.
Section 7201 tax evasion charges would be a more obvious choice for charges against the parents, Sardar said. The government would have several alternatives, including defraud conspiracy charges, before it would need to settle for tax obstruction charges, he said.
Also, a defense attorney might want to highlight the passage in Marinello in which the Supreme Court said that “it is not enough for the Government to claim that the defendant knew the IRSmay catch on to his unlawful scheme eventually,” Sardar added. The phone calls concerning a nonexistent audit sound a lot like taxpayers considering the possibility that the IRS would catch on eventually, he said.
Both Sardar and Nardiello said the fact that the parents weren’t the targets of the supposed audit wouldn’t be a problem for the government in a better tax obstruction scenario.