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contesting the forfeiture

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underrated831

Junior Member
What is the name of your state? california (san diego county)

Ok so this is my story.

I used to live in a house with 3 other guys. It was 4 of us total. The police raided the house and found 9 pounds of marijuana in the garage; we were all arrested because it was in a common place. The thing is I haven’t lived at that house for over a month, but my name was on the lease agreement so they arrested me anyway. im still fighting this in court. they found nothing in my room but they found scales and baggies in my old roommates’ rooms. anyway they seized 9 grand in cash from my safety deposit box at the bank because they think its drug money but its not, its money my grandmother gave me before she died in 2003. the u.s. department of justice DEA sent me a letter saying I can contest the forfeiture. what exactly should I do? should I just send a letter explaining everything? if so what should I include? what kind of info? OR should I get an attorney to help me? thank you very much in advance, your help is greatly appreciated.


-Andrew
 


NandCo

Junior Member
I am no attorney, but I am sure you will have to have some documentation or some sort of trail to show it. Best of luck
 

CdwJava

Senior Member
Presumably you declared the $9,000 on your taxes ... you can use that to show prior possession and the source. If you did not declare it, then you might have to pay taxes on it as income as it would be hard to now go back and claim it was a gift.

If there are no witnesses and no paper trail to cover this alleged gift, don't expect the feds to believe it.

Speak to an attorney.

- Carl
 

tranquility

Senior Member
Gifts are not placed on a tax return by the receiver. Even the giver would not have to report anything if the amount is less than the statutory amount. (Now, $12,000 but it was $10,000 for a long time.) If the question were to arise in a tax audit, you would need to show how it was a gift. (We had a client who produced a letter from his mother to him to show a gift and the IRS accepted that.)

I think the burden of proof is on you to prove it was not related to the reason why it was seized in a forfeiture situation. In other words, due process is turned upside down in such forfeitures and you need to prove reality to get it back rather than the government needing to prove reality to seize it. I think it is unlikely you will meet this burden if you have nothing other than your word it was a gift.
 

CdwJava

Senior Member
tranquility said:
Gifts are not placed on a tax return by the receiver. Even the giver would not have to report anything if the amount is less than the statutory amount. (Now, $12,000 but it was $10,000 for a long time.) If the question were to arise in a tax audit, you would need to show how it was a gift. (We had a client who produced a letter from his mother to him to show a gift and the IRS accepted that.)
When we got such a gift we presented both the letter and the information to our tax guy ... we pre-empted any problems largely because we did not want to have to be in this position. But, I suppose you are right.

However, if no one knows about this alleged gift, I doubt he's gonna get traction with the claim. Additionally, most such gifts tend to be for an amount to cover a specific expenditure (down payment for a home or car, tuition, etc.), or, an amount at the max. of the lawful annual gift amount - $12,0000 I believe. Gifts for no reason, below the max. allowed, and without any documentation are suspicious ... combined with drugs found in the home and the allegation it came from a deceased relative make it even more eyebrow raising.

I think the burden of proof is on you to prove it was not related to the reason why it was seized in a forfeiture situation. In other words, due process is turned upside down in such forfeitures and you need to prove reality to get it back rather than the government needing to prove reality to seize it. I think it is unlikely you will meet this burden if you have nothing other than your word it was a gift.
CA law has essentially turned to put the burden on the state ... but the feds still hold to the procedure you outline. I agree - he's got an uphill battle.

- Carl
 

tranquility

Senior Member
CA law has essentially turned to put the burden on the state ... but the feds still hold to the procedure you outline.
I don't know anything about CA law on this. Do you know, offhand, where I'd find it? I do know there are cities who seem to keep adding municipal ordinances for forfeiture. It is very profitable.

I'm glad California is placing the burden where it should be. However, that's probably why the feds are brought in on all big busts. So *they* can seize and then give back some funds to the locals.

When we got such a gift we presented both the letter and the information to our tax guy ... we pre-empted any problems largely because we did not want to have to be in this position.
We usually advise the client to keep such things--right next to their contemporaneously written record of all their charitable mileage. We might keep a copy as a service in case there's an audit. I would be very suspicious if a client really wanted me to keep the record so he could prove a gift in the case the government seized cash in a drug investigation, but I guess you're just a little more cautious than most.

However, if no one knows about this alleged gift, I doubt he's gonna get traction with the claim. Additionally, most such gifts tend to be for an amount to cover a specific expenditure (down payment for a home or car, tuition, etc.), or, an amount at the max. of the lawful annual gift amount - $12,0000 I believe. Gifts for no reason, below the max. allowed, and without any documentation are suspicious ... combined with drugs found in the home and the allegation it came from a deceased relative make it even more eyebrow raising.
Most gifts we deal with are at the max level as an estate planning tool. I hope the current law in CA regarding seizure of an asset requires more than a raised eyebrow.
 

CdwJava

Senior Member
tranquility said:
I don't know anything about CA law on this. Do you know, offhand, where I'd find it? I do know there are cities who seem to keep adding municipal ordinances for forfeiture. It is very profitable.
It's not profitable for most of us ... well, not THAT profitable. I have our policy at the office, but I am not sure if it cites any state authority. I do know that less than 10 years ago the state made it harder to do ... but this was back before I had a part in forfeiture, so other than knowing that it became much more difficult for local agencies to get these seizures, I do not know off-hand what the process entails in its entirety. I know it is barely a blip on our budget. In fact, it had to be pointed out to me a couple of years ago ... I did no tthink we got ANYTHING from these seizures.

I would be very suspicious if a client really wanted me to keep the record so he could prove a gift in the case the government seized cash in a drug investigation, but I guess you're just a little more cautious than most.
We sent it to the tax guy ... whether he kept it or not, I don't know. I know he said we did not have to declare it. But, at least he could testify as to having been noticed.


- Carl
 

CdwJava

Senior Member
Tranq,

The asset forfeiture statutes are covered by H&S 11469-11495 ... I snuck by the office to look up a few things.

- Carl
 

xylene

Senior Member
Equations

9000 k in cash + indica of dealing - the interest forgone on a brick of grandmas cash

That isn't such a hard equation to solve.

I don't like federal forfeiture, but that sure sounds like circumstantial evidence.

Do you have a lawyer?
 

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