From: Brian Davis <bdavis@thepoint.net>
Date: Wed, 25 Dec 1996 21:31:35 -0800 (PST)
To: jim bell <jimbell@pacifier.com>
Subject: Re: Legality of requiring credit cards?
In-Reply-To: <199612250329.TAA21067@mail.pacifier.com>
Message-ID: <Pine.BSF.3.91.961226002744.4683F-100000@mercury.thepoint.net>
MIME-Version: 1.0
Content-Type: text/plain


On Tue, 24 Dec 1996, jim bell wrote:

> At 09:39 PM 12/24/96 -0500, Brian A. LaMacchia wrote:
> >At 05:54 PM 12/24/96 -0800, jim bell wrote:
> >>"Man wins $27,000.  He will eventually be required to report and pay taxes 
> >>on the amount, but not quite yet.  Stupid I/R/S people alert him BEFORE he 
> >>files his taxes.  He reports the payment, as is ostensibly legally required. 
> >> He paid the taxes owed.  Period."
> >>
> >>THEN you said, "we settled the matter."   Huh?  What, exactly, was there to 
> >>"settle"?  
> >
> >Why, of course, the fact that the guy attempted to structure the
> >transaction to evade the reporting requirements in the first place.  31
> >U.S.C. 5324(a). 
> 
> Who says?  He eventually reported it within the legally-defined time.  The 
> evidence of intent to COMPLY with the law is far stronger than the evidence 
> of the opposite.  
> 
> 
> >Structuring (or attempting to structure) a financial
> >transaction to evade the reporting requirements is a violation of this
> >subsection, and 31 U.S.C. 5322(a) says that a willful violation is a
> >five-year felony.
> 
> Again, he clearly DID NOT "evade the reporting requirement."  Brian Davis 
> admitted this. (Whether he ever intended to do this is sheer speculation on 
> the part of anyone else.  We'll never know; as Davis pointed out, the IRS 
> screwed up.)   Even if the standard of evidence was as low as "preponderance 
> of evidence" (which it, of course, is not in a criminal case) he SHOULD have 
> won.  By waiting until the return was filed and the tax was paid, the IRS 
> was allowing him to resolve whatever ambiguity remained.

You misunderstand what the statute intends.  The violation is for 
attempting to evade *the bank's* requirement to report certain 
transactions (i.e. >$10K).  He structured the transaction in an effort to 
keep the bank from complying with the law.


 
> Actually, if there were any justice, he should have been able to sue the 
> bank for reporting him and NOT INFORMING HIM of that fact.  (I presume the 
> law requires the bank to report suspicious transactions.  I also presume 
> that the law _doesn't_ prohibit the bank from telling the customer that it 
> will have to report that transaction.)  The bank, presumably being experts 
> in the matter, recognizes that lay individuals can't be expected to be experts 
> in specialized areas, and should be considered obligated to warn customers 
> away from suspicious-looking transactions.  I'm sure the REAL LAWYERS (tm) 
> on this list will be able to cite examples of where experts of all kinds 
> were sued by non-experts for failing to warn them of unexpected dangers that 
> could have been averted had the appropriate advice been given promptly.
> 
So you want the bank to be your nanny?  The guy is a lawyer and had 
previously been involved in transactions in which such reports had been 
filed.  What is your explanation for the three 3 $9k check request?  

EBD
> 
> 
> 
> Jim Bell
> jimbell@pacifier.com
>