IRS Drops Its Asset Forfeiture Case Against Owner Of Small, Cash-Only Restaurant

from the the-beginnings-of-shift-in-priorities? dept

Some of the recent heat surrounding asset forfeiture seems to have gotten to the IRS. Late last week, it moved to dismiss one of its more high-profile cases -- one that had received extensive coverage from the New York Times and countless other sources. [via Michael Scarcella's (of the National Law Journal) invaluable Twitter feed]

A brief refresher:

Carole Hinder had run a small, cash-only restaurant for nearly 40 years without incident before the IRS decided to step in and seize $33,000 from her bank account. Shortly after that, it acquired a warrant to seize another $150,000. The IRS's case hinged on the fact that every deposit made to the account totalled less than $10,000.

From the dismissal order [pdf link]:
As reflected in the affidavit in support of the verified complaint, from April 2012 through February 2013, more than $315,000 in currency was deposited into Mrs. Lady’s, Inc. bank account in approximately fifty-five separate deposits. No individual currency transaction exceeded $10,000 during that period. A sample of cash transactions between May 2012 and August 2012 showed a pattern of deposits consisting of frequent large deposits in amounts under $10,000 that were near in time to smaller deposits that, taken together, would have triggered bank reporting requirements.
Hinder's defense was that her mother had advised her to break up the deposits into smaller amounts as a "convenience" to the bank. Staying below the reporting requirements does actually make the bank's work easier (and the customer's), but the IRS (and law enforcement) view this sort of behavior, no matter if it's linked to criminal activity or not, as "structuring" -- deliberate attempts to avoid reporting large amounts of cash to the government.

The dismissal order indicates the IRS may have had evidence on its side. (That is, evidence that someone broke up deposits to avoid hitting the $10,000 mark. Not evidence that Hinder was involved in criminal activity or somehow intentionally screwing the IRS.) Despite this, it moved to drop the case, using the old "we have better things to do" excuse. It also maintains it did nothing wrong.
Pursuant to Rule 41(a)(2) of the Federal Rules of Civil Procedure, the United States hereby moves to dismiss, without prejudice, the instant case. Despite two judicial probable cause finding supported by Claimant’s clear pattern of manipulating bank deposits below $10,000 in order to evade the reporting requirements of 31 U.S.C. § 5313, plaintiff believes, in the exercise of its prosecutorial discretion, that allocating its limited resources elsewhere would better serve justice in this case. Notwithstanding, the request herein, the request should not be construed as an acknowledgement or admission to any liability or wrongdoing whatsoever.
The dismissal is without prejudice, meaning the IRS is still free to pursue this in court in the future. The court also notes that this voluntary dismissal does not remove the IRS's claim to the disputed assets seized by the agency. So, it's not a complete win for Hinder, but it does at least indicate the IRS is somewhat responsive to negative press. The IRS does have limited resources, and it's going to be better off pursuing clearly illegal actions than chasing down fringe cases and fighting battles in two courts (federal and public opinion). The IRS has also announced that it will no longer pursue apparent "structuring" if there's no indication the money comes from illegal sources. This is a step in the right direction, especially considering asset forfeiture has become shorthand for government abuse and the agency's pursuit of small business owners seemingly nothing more than the intersection of vindictiveness and greed.
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Filed Under: asset forfeiture, carole hinder, cash, forfeiture, irs, legalized stealing


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  • icon
    Ninja (profile), 16 Dec 2014 @ 2:37am

    Pardon me if any link specifies it (haven't read the sources) but did they manage to keep the business and their lives running? I mean my friend has a small shop and if anything remotely close to the amounts shown was withdrawn from his account he'd be screwed since he needs the money to keep the business running (ie: most of the money is not profit).

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Dec 2014 @ 6:57am

      Re:

      There are many millionaires that own restaurants. A nice luxury, well managed, restaurant in the right location can earn a lot and often the owners own more than just one (I can only imagine what a Cheesecake factory nets, wouldn't surprise me if the owner(s) net eight figures).

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 16 Dec 2014 @ 7:21am

        Re: Re:

        With only one exception everyone that I know that makes (nets) a lot of money (seven to eight figures) owns their own business. While school prepares you to work for someone else the real money is in having your own business (assuming you have the right business in the right locations and you know how to run them). School doesn't teach you that, instead they give you these faulty statistics based on surveys that don't include business owners (partly because those business owners simply hang up the phone on universities taking the surveys and maybe party because do you really trust schools to give you the real numbers if they have them?).

        In fact one of problems that firms of skilled professions have (is:accountants or even IT) is that many of their best employees quit and go independent or start their own independent business. It's usually more profitable to work for yourself than someone else.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 16 Dec 2014 @ 7:23am

          Re: Re: Re:

          on universities conducting these surveys *

          reply to this | link to this | view in chronology ]

        • icon
          John Fenderson (profile), 16 Dec 2014 @ 1:12pm

          Re: Re: Re:

          "It's usually more profitable to work for yourself than someone else."

          Not usually. All other things being equal, it's always more profitable to work for yourself. When you do so, you've cut out a whole bunch of middlemen who each take a cut.

          On the other hand, that extra profitability doesn't come for free. Working for yourself is a lot more work than working for someone else. Forget about 8 hour workdays, for starters. You're never off the clock. Things like getting sick become hugely problematic. Every little problem with the business is your problem and you will lose at least some nights to worry and the resulting insomnia. Especially if you have employees. Oh, and all of the risk of the business is your risk.

          Personally, I think working for yourself is the best way to go. It both maximizes return and maximizes satisfaction. However, it's certainly not for everybody. Whether or not I'd recommend anyone else do it depends almost entirely on their temperament.

          reply to this | link to this | view in chronology ]

    • icon
      Sheogorath (profile), 19 Dec 2014 @ 3:02pm

      Re:

      Ninja: The restaurant owners weren't withdrawing the money, they were depositing it. The federal reporting requirements kick in when the amount of any transaction is $10,000 or over, deposit or withdrawal. Simples!

      reply to this | link to this | view in chronology ]

  • icon
    Paul Renault (profile), 16 Dec 2014 @ 5:00am

    Let me see if I got this right:

    If you regularly deposit more than $10K in cash, that's suspicious and might be criminal, and so must be reported.
    If you regularly deposit less than $10K in cash, that's suspicious and might be criminal, and so must be investigated.

    reply to this | link to this | view in chronology ]

  • icon
    Adam (profile), 16 Dec 2014 @ 5:25am

    So, is it legal or not to break up your deposits even if the intention is to avoid the banks reporting requirements? I mean, it's a bank requirement not a taxpayer requirement... and as long as your amounts match what your claiming on your taxes... why does it even matter?

    reply to this | link to this | view in chronology ]

    • icon
      Vincent Clement (profile), 16 Dec 2014 @ 10:47am

      Re:

      It's legal. But the IRS chose to get around that legality by using law enforcements favourite loophole: Asset Forfeiture. Remember, that you don't even have to be charged for assets to be seized.

      reply to this | link to this | view in chronology ]

      • icon
        Sneeje (profile), 17 Dec 2014 @ 6:08am

        Re: Re:

        No its not. See http://www.fincen.gov/whatsnew/pdf/CTRPamphletBW.pdf

        Can I break up my currency transactions into multiple, smaller amounts to avoid being reported to the government?
        No. This is called “structuring.” Federal law makes it a crime to break up transactions into smaller amounts for the purpose of evading the CTR reporting requirement and this may lead to a required disclosure from the financial institution to the government. Structuring transactions to prevent a CTR from being reported can result in imprisonment for not more than five years and/or a fine of up to $250,000. If structuring involves more than $100,000 in a twelve month period or is performed while violating another law of the United States, the penalty is doubled.

        reply to this | link to this | view in chronology ]

  • icon
    art guerrilla (profile), 16 Dec 2014 @ 5:25am

    well, here's what gets me...

    ...they apparently KNOW that it was not likely from illegal means, YET THEY STILL are going to confiscate the money, simply because it 'looks suspicious' with the 'structuring' bullshit ? ? ?

    so-o-o-o, the 'lesson' is: forget about whether you are doing anything actually illegal or not (AND who knows these days?), but simply APPEARING to be suspicious is enough to get your life's savings confiscated with no effective method to fight it...

    AND she STILL has the sword of damocles hanging over her head for -what?- FOREVER ? ? ? dog almighty, we are so fucked...

    reply to this | link to this | view in chronology ]

    • icon
      Vincent Clement (profile), 16 Dec 2014 @ 10:49am

      Re: well, here's what gets me...

      And keep that in mind when the "you don't have anything to worry about if you are a law abiding citizen' crowd comes out to play.

      reply to this | link to this | view in chronology ]

      • identicon
        DogBreath, 16 Dec 2014 @ 11:08am

        Re: Re: well, here's what gets me...

        A.K.A. (in IRS language):

        "If you don't have anything to structure, then you don't have anything worth seizing. Oh, your money is still presumed guilty, even if your flat broke and can't afford a lawyer, because we took your money. Don't expect it back any time soon."

        reply to this | link to this | view in chronology ]

      • identicon
        David, 17 Dec 2014 @ 1:02am

        Re: Re: well, here's what gets me...

        But she does not have anything to worry about. It's her money that is presumed guilty and seized. She is free to go. Until her debtors get her in prison, that is. She should have put some money aside secretly. It's her own fault for sticking to the law if she is going to get punished anyway.

        reply to this | link to this | view in chronology ]

  • identicon
    Jasmine Charter, 16 Dec 2014 @ 5:31am

    Terrorists

    Hi... we, the Terrorist organization referred to as the IRS, do release this particular infidel since there are plenty of other infidels to financially behead. We do not admit any wrong doing in the years long torture of said infidel and we do reserve the right to snatch her up again and financial behead her! All praise to glorious abuse of power!

    reply to this | link to this | view in chronology ]

  • icon
    Sneeje (profile), 16 Dec 2014 @ 5:58am

    Bank Secrecy Act

    The genesis of this is the Bank Secrecy Act, for which the regulatory authority is FinCEN, not the IRS. The IRS, however, acts as the enforcement arm for FinCEN most of the time because their various divisions (in this case, Small Business/Self-Employed) are much better prepared to audit or investigate issues. FinCEN only has 300ish employees.

    The BSA dictates that for each deposit of 10K+ in cash, a Currency Transaction REport (CTR) be filled. It is a form covering a statement of fact. If structuring is suspected, a Suspicious Activity Report must be filled, which is more like a tip.

    If the banks don't comply with these expectations, they can be subject to significant fines and penalties.

    These fillings are also expected for securities, for conversion of assets to cash or vice-versa, when bringing cash or taking it out of the country, etc. So, for example, if you pay an attorney 10K in cash, they have to file a CTR.

    reply to this | link to this | view in chronology ]

    • icon
      Unovis (profile), 16 Dec 2014 @ 8:00am

      Re: Bank Secrecy Act

      IIRC you can get an exemption from this rule if you have a business that regularly triggers the CTR. The bank should work with the member and get the correct paperwork filled out so that they would not have to do anything special.

      reply to this | link to this | view in chronology ]

      • icon
        Sneeje (profile), 16 Dec 2014 @ 8:36am

        Re: Re: Bank Secrecy Act

        You can, its called a Designation of an Exempt Person (DOEP), but it isn't for the business, it is for the individual depositing the cash on behalf the business/organization.

        reply to this | link to this | view in chronology ]

    • icon
      Vincent Clement (profile), 16 Dec 2014 @ 10:53am

      Re: Bank Secrecy Act

      Nothing like more paperwork to undermine those crime syndicates or terrorist organizations.

      reply to this | link to this | view in chronology ]

  • icon
    BentFranklin (profile), 16 Dec 2014 @ 6:32am

    We enacted civil asset forfeiture in the 1990s just to combat drug kingpins. But now it is being applied wholesale.

    Today, NSA is asking for permission to spy on everyone just for terrorism purposes. Guess what it will look like in 20 years?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Dec 2014 @ 6:52am

    And automatic payroll deposits?

    Don't know about you, but mine fall under the $10,000.
    But collectively go over $10,000.....

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 16 Dec 2014 @ 7:11am

      Re: And automatic payroll deposits?

      If your employer paid you $9,125 one day, then the very next day paid you $875, that would be suspicious activity.

      If your employer pays you $9,125 every two weeks it just means you earn a lot of money.

      reply to this | link to this | view in chronology ]

      • icon
        Sneeje (profile), 16 Dec 2014 @ 7:16am

        Re: Re: And automatic payroll deposits?

        Yes, FinCEN provides guidance for this. But more specifically it wouldn't qualify because it isn't a CASH deposit. Automatic payroll deposits are by definition not cash.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 16 Dec 2014 @ 7:56am

          Re: Re: Re: And automatic payroll deposits?

          IIRC that law used to say cash, but was changed in the 1980's to say any transaction, not just cash. I know my employer's deposits of checks and money orders get a 2 day hold if the deposit goes over 10 grand, and if he deposits a single check over 10 grand it's a 10 day hold.

          reply to this | link to this | view in chronology ]

          • icon
            Sneeje (profile), 16 Dec 2014 @ 8:04am

            Re: Re: Re: Re: And automatic payroll deposits?

            Suspicious Activity Reports (SARs) can be any transaction, but 8300s, CMIRs, and CTRs are specifically tied to CASH.

            I wasn't clear, but I meant that CTRs would not be submitted for automatic deposits. But you are correct that structuring could be associated with deposits if the bank has a reason to believe they are suspicious.

            There is quite a bit of guidance around this, though, and automatic salary deposits (for example) are well-established non-suspicious behavior.

            reply to this | link to this | view in chronology ]

            • icon
              art guerrilla (profile), 16 Dec 2014 @ 9:52am

              Re: Re: Re: Re: Re: And automatic payroll deposits?

              i will only say this: wife/i got a home construction loan, and totally unexpectedly got a modest amount of money from a relative who died and left a trust account...
              being good little droids, we reported that money in our loan app, and were taken aback to find out *THEY* wanted to give us the third degree where they money came from, a copy of the will, blah blah blah...

              all for money that was distributed by check from a trust account, NOT a will or anything involved...
              fucking creeps, dog damn i hates me some banksters...

              as per usual, bullshit that THEY DO gets blamed on US; just like how NEGATIVE interest rates are becoming reality; *supposedly* to get big money holders to get their money out of savings accounts and put it in the stock market where The They (tm) can steal it fair and square...

              um, just one tiny detail: IT IS THE BANKS who are sitting on tons of money they refuse to lend out; why isn't the Fed charging *them* negative interest to -you know- 'encourage' them to lend out the money ? ? ?

              one racket on top of another...
              i'm investing in pitchforks FTW ! ! !

              reply to this | link to this | view in chronology ]

  • identicon
    David, 16 Dec 2014 @ 7:31am

    But it IS reported to the government

    As income for the business when it files it's taxes. Right?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Dec 2014 @ 7:43am

    Remember People

    The law is now designed to make you look like a criminal... (when they need you too)

    Whether you are an actual criminal or not.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Dec 2014 @ 8:21am

    And this is exactly why my Grandmother had cash stuffed all over the house, and in a jar in the garden.

    reply to this | link to this | view in chronology ]

  • icon
    John Fenderson (profile), 16 Dec 2014 @ 8:40am

    What does this mean?

    The court also notes that this voluntary dismissal does not remove the IRS's claim to the disputed assets seized by the agency.


    Does this mean that she's not getting the money back? So this is just another case of theft?

    reply to this | link to this | view in chronology ]

  • icon
    John85851 (profile), 16 Dec 2014 @ 8:58am

    Carole Hinder had run a small, cash-only restaurant for nearly 40 years without incident...
    and
    ... from April 2012 through February 2013, more than $315,000 in currency was deposited...

    So the take-away is that the bank and federal agencies didn't care about her depsoits for nearly 40 years, until April 2012. What happened then? The IRS and FinCEN have been around for much longer than 2012.

    But what this also shows is that any company that makes large cash deposits is also vulernable, no matter how long it's been in business.

    reply to this | link to this | view in chronology ]

    • identicon
      PRMan, 16 Dec 2014 @ 9:50am

      Re:

      Someone told the bank that she was purposely structuring her transactions. It's a good thing she's not a creationist like Kent Hovind or she would have done 10 years for this.

      reply to this | link to this | view in chronology ]

  • identicon
    Anon, 16 Dec 2014 @ 9:17am

    The IRS Was Correct

    Basically, the IRS was doing what the law directed it to do. The business owner (with good intentions)did structure her deposits to avoid triggering the $10,000 reporting limit.

    The problem is not the IRS. The problem (as usual, it seems) is congress. Congress wrote a law that made life difficult for non-criminal banks and business owners. Congress made a law that made typical behaviour criminal. The IRS does what the law told it to do. No doubt, congress either ignored the implications of their law (most likely), or expected the IRS to use discretion to ignore non-criminal transactions that violated these rules.

    Where does this stop? The intent was to track EVERY transaction of $10,000 cash and make it illegal to evade the reporting.

    the solution, it seems to me, is to make the form incredibly simple and hassle-free for established, regular businesses so people don't avoid it to "remove the hassle" of reporting. Once you've filed one CTR, it seems the rest should be "See first filing" if the source is the same... i.e. restaurant daily proceeds.

    And what if the person, for example, says "oh, I have $8,000 in the till. I better deposit now instead of waiting until tonight." Is that legal, but once the amount in the till exceeds $10,000 a deposit of under $10,000 is illegal? It's just too confusing. Perhaps the law could say money is only forfeit in evidence of criminal proceeds... Otherwise, structuring would be like a speeding ticket - pay your $400 fine and begone with you.

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 16 Dec 2014 @ 9:36am

      Re: The IRS Was Correct

      Yes, as much as I hate to defend the IRS, quite a lot of the things they catch flack for are things that are really the fault of Congress. This is one of those things.

      I'm continually confused about the "hassle of reporting" stuff, though. In my own businesses, I regularly deposited checks that exceeded $10k. If there was any hassle involved, my bank shielded me from it so well that it had zero impact on me.

      That said, I would certainly do my best to avoid cash transactions of $10k or more with my personal accounts. Not because of hassle, but because I would prefer not to appear on those government lists. With my businesses, I don't care because the reporting I have to do for them is more intrusive than that in the first place.

      reply to this | link to this | view in chronology ]

      • identicon
        PRMan, 16 Dec 2014 @ 9:52am

        Re: Re: The IRS Was Correct

        "That said, I would certainly do my best to avoid cash transactions of $10k or more with my personal accounts. Not because of hassle, but because I would prefer not to appear on those government lists. With my businesses, I don't care because the reporting I have to do for them is more intrusive than that in the first place."

        Based on this post, you are now guilty of structuring. The IRS can arrest you at any time and make your transaction history appear to violate the statute with your admission in this post.

        That's why this law needs to be stricken.

        reply to this | link to this | view in chronology ]

        • icon
          John Fenderson (profile), 16 Dec 2014 @ 10:16am

          Re: Re: Re: The IRS Was Correct

          You'd have a point if I had the opportunity to make such large deposits and avoided it (or that my transaction history could be misrepresented so that it looked that way). Alas, I am not wealthy enough to have that problem.

          reply to this | link to this | view in chronology ]

          • identicon
            David, 17 Dec 2014 @ 1:10am

            Re: Re: Re: Re: The IRS Was Correct

            Now that you have admitted in public that you are likely to engage in behavior interesting for law enforcement, the opportunity will magically arise and there will be a sting operation confiscating everything you got.

            Actually, they don't even need to frame you. Given your written admission it is more than likely that your house has been built using illegitimate means and so it better be forfeited for the good of everyone.

            reply to this | link to this | view in chronology ]

        • icon
          BernardoVerda (profile), 16 Dec 2014 @ 11:55pm

          Re: Re: Re: The IRS Was Correct

          "That said, I would certainly do my best to avoid cash transactions of $10k or more with my personal accounts. Not because of hassle, but because I would prefer not to appear on those government lists."

          Or, you might just simply not want to be carrying larger amounts of hard cash to the bank on any sort of regular, predictable schedule...

          reply to this | link to this | view in chronology ]

    • icon
      Gwiz (profile), 16 Dec 2014 @ 9:47am

      Re: The IRS Was Correct

      And what if the person, for example, says "oh, I have $8,000 in the till. I better deposit now instead of waiting until tonight."

      In this case the business owner had a legit, valid reason for making deposits before the amount reached $10,000. His insurance policy against theft only covers amounts under $10,000.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Dec 2014 @ 1:13am

        Re: Re: The IRS Was Correct

        His insurance policy against theft only covers amounts under $10,000.

        They probably wanted to avoid having to cover thefts occuring as a consequence of the bank notifying the government about a large payment.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Dec 2014 @ 9:58am

    Curtailing

    The IRS has also announced that it will no longer pursue apparent "structuring" if there's no indication the money comes from illegal sources.

    That's not what the article actually says. The New York Times wrote:
    The I.R.S. recently announced that it was sharply curtailing seizures in cases like Ms. Hinders’s, where there is no suspicion that the money involved came from an illegal source. But officials said they would not drop cases that were already underway.

    Merriam-Webster: Curtail: “to reduce or limit (something).”

    A reduction or limitation is not the same as utter and complete cessation. Diminishment is not arrest.

    They're just going to limit themselves to cases which are unlike Ms. Hinders, insamuch as her case got way too much damn publicity.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 16 Dec 2014 @ 2:06pm

      Re: Curtailing

      They're just going to limit themselves to cases which are unlike Ms. Hinders, insamuch as her case got way too much damn publicity.

      And that, right there, is the real reason they dropped it, too many eyes watching what they were doing.

      Grabbing a couple hundred grand from someone you know isn't guilty to pad the budget, no problem. Doing so when the public is watching you rob someone? Suddenly it was 'just a mistake', though by not having the case dismissed with prejudice, they're not even admitting that, but most likely just holding off until there's not so much press covering it before continuing.

      reply to this | link to this | view in chronology ]

  • icon
    mdpopescu (profile), 16 Dec 2014 @ 10:16am

    This site is going to the crapper...

    The IRS does have limited resources...


    Seriously? Since when?

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 16 Dec 2014 @ 2:54pm

      Re: This site is going to the crapper...

      Since always. There is a finite amount of money and other resources on the planet, so there is a limit.

      reply to this | link to this | view in chronology ]

  • identicon
    bugmenot, 16 Dec 2014 @ 2:31pm

    'will no longer pursue apparent "structuring" if there's no indication the money comes from illegal sources.'

    The whole point of the law is to uncover illegal activity. If they don't think there's illegal activity why would they pursue it?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Dec 2014 @ 2:35pm

    IRS - the only "legal" way to steal money

    You hear that illegal stealers of money, theres a career ladder

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 16 Dec 2014 @ 5:13pm

    I work for a mortgage lender (which is a bank, at least according to the government) and we have to take the course on the Bank Secrecy Act and all that crap every 12 months, even though we don't have customer accounts for anyone to deposit anything into. What she did is technically illegal, but the people who should have had their feet held to the fire were the bank employees who almost certainly knew she was "structuring" her deposits. That's how the rules are supposed to work, but I bet that didn't happen because bank clerks don't have $150,000 in assets to seize. :/

    reply to this | link to this | view in chronology ]

  • identicon
    Kenneth, 26 Dec 2014 @ 11:43am

    IRS antics

    "The IRS is still free to pursue this in court in the future", depending on how she votes or to whom she makes campaign contributions.

    reply to this | link to this | view in chronology ]


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