Selective Enforcement?

[oof]

I am a small business owner in WI.

Recently I was audited by my states Department of Revenue, and due to a mistake I made (which I fully acknowledge) they have assessed me a substantial liability in excise taxes. However, I have evidence that the state has turned a blind eye to businesses virtually identical to mine which intentionally defrauded the state out of millions in excise revenue. Would I have a case for "selective enforcement"?

 

[CdwJava]

The state cannot be expected to audit everyone. The fact that other businesses have NOT been audited or hit with the same penalties as you have is not proof that you were UNLAWFULLY targeted.

You will have to try and another method of defense.

You should consider consulting legal counsel if the damage is worth putting up a fight and paying the costs of an attorney.

 

[tranquility]

I am a small business owner in WI.

Recently I was audited by my states Department of Revenue, and due to a mistake I made (which I fully acknowledge) they have assessed me a substantial liability in excise taxes. However, I have evidence that the state has turned a blind eye to businesses virtually identical to mine which intentionally defrauded the state out of millions in excise revenue. Would I have a case for "selective enforcement"?

One person's "selective enforcement" is another's prosecutorial discretion. You have a duty to follow the law. Making a constitutional due process argument will cost you far more (and would lose) than the cost of your taxes.

 

[Zigner]

I am a small business owner in WI.

Recently I was audited by my states Department of Revenue, and due to a mistake I made (which I fully acknowledge) they have assessed me a substantial liability in excise taxes. However, I have evidence that the state has turned a blind eye to businesses virtually identical to mine which intentionally defrauded the state out of millions in excise revenue. Would I have a case for "selective enforcement"?

No .

 

[oof]

Wow, fast responses!

Let me clarify a bit - the state KNEW what they were doing. It went to court, the state eventually won. Rather than penalize them, they gave them a timeframe for "voluntary compliance".

My situation was virtually identical, but unintentional, in the same time period. I was not offered any amnesty whatsoever. Is not the state supposed to enforce the law equally? Who gets to choose who obeys the law and who doesn't? If I have to pay, why don't they?

IMO they focused on me because I was an easier target than trying to collect from dozens of others.

 

[Zigner]

Wow, fast responses!

Let me clarify a bit - the state KNEW what they were doing. It went to court, the state eventually won. Rather than penalize them, they gave them a timeframe for "voluntary compliance".

My situation was virtually identical, but unintentional, in the same time period. I was not offered any amnesty whatsoever. Is not the state supposed to enforce the law equally? Who gets to choose who obeys the law and who doesn't? If I have to pay, why don't they?

IMO they focused on me because I was an easier target than trying to collect from dozens of others.

Great - thanks for the clarification.

See the prior answers, as they have not changed.

 

[tranquility]

Google, prosecutorial discretion.

You may add "taxes" if you'd like.

 

[oof]

Are there real lawyers here? I'm not looking for answer from "internet lawyers".

I'm being a bit vague as to keep information confidential, but if you knew the whole story I bet you would think otherwise. Law is law, and I'm hard pressed to believe a jury would agree with the states actions.

 

[Zigner]

Are there real lawyers here? I'm not looking for answer from "internet lawyers".

I'm being a bit vague as to keep information confidential, but if you knew the whole story I bet you would think otherwise. Law is law, and I'm hard pressed to believe a jury would agree with the states actions.

You can go to the home page at www.freeadvice.com and click on the Ask a Lawyer link (or, simply go to www.freeadvice.com/law-questions which is a direct link)

Good luck.

 

[CdwJava]

A JURY would not be making a decision on whether going after you was "fair" when the state did not pursue others as aggressively. A jury will decide your guilt or innocence if charged with a crime, or decide on whether an award should be made in the case of a civil matter, but they will not be deciding on a matter of discretion.

By itself, selective enforcement is not unlawful. And, you have presented nothing that shows that this was in some way the UNLAWFUL exercise of discretion. Your attorney can certainly try and raise this argument before a court in an attempt to get the matter dismissed, but it is not likely to succeed absent some other factors including some pretty damning evidence of misconduct.

While what is being done might not be "FAIR," it is very likely entirely lawful.

 

[tranquility]

Are there real lawyers here? I'm not looking for answer from "internet lawyers".

I'm being a bit vague as to keep information confidential, but if you knew the whole story I bet you would think otherwise. Law is law, and I'm hard pressed to believe a jury would agree with the states actions.

A jury? For what? If you were to challenge the facts regarding your violation of law, you will not even be allowed to enter evidence that another in like circumstances was not punished in the same way. If you were to sue for a 42 U.S.C. 1983 violation of equal protection for disparate treatment, you would lose and it would cost you a ton.

Let me put it this way, say you had a tax that people could pay in a lump sum or in installments. Something like a tax to pay for the sewers. A person could pay the tax all up front or pay in installments. Some people decide to pay all at once. After a while, the city decides to change the way it does business and sells bonds to pay for the connections and forgives all amounts not yet paid. (For those who made installment payments.)

Now, those who paid in a lump sum thinks that is unfair and ask for a refund. They don't think it is fair to both pay up front and to pay (through the general fund) AGAIN for the bonds that all will have to pay. City says to pound sand. What result?

Pound sand.

As long as the taxing authority has a rational basis for their actions (In your issue, perhaps the difficulty of the case or whatever.) it is completely fine. Rational basis is a very low hurdle. Politicians (And, bureaucrats.) can ALWAYS find a reason to make it all legal like.

 

[oof]

I don't know how much simpler I can make this with regard to being "unlawful".

These business committed a crime, intentionally, and were not prosecuted nor penalized for it. You could say that I too committed a crime, as I have acknowledged, however unintentionally yet I am being penalized.

Law and "fairness" go hand in hand. How can anyone take a legal system seriously if what's good for the goose isn't good for the gander?

 

[oof]

In any case, I have every intention of fighting this. I find it completely unjust. And if the state or a judge can't see that, then I will pack up my business and relocate. I'm not going to deal with or pay tax to a state that decides who gets to obey the law and who doesn't.

 

[CdwJava]

I suppose you could scream to the media that these other folks should also be punished, but that is not a defense to your alleged violations. You are certainly free to try and highlight these miscreants to your heart's content, but the specifics of their cases and the details of any investigations (which, I imagine, you do not have specific intimate knowledge) do not grant you a free pass as a result.

 

[tranquility]

I don't know how much simpler I can make this with regard to being "unlawful".

These business committed a crime, intentionally, and were not prosecuted nor penalized for it. You could say that I too committed a crime, as I have acknowledged, however unintentionally yet I am being penalized.

Law and "fairness" go hand in hand. How can anyone take a legal system seriously if what's good for the goose isn't good for the gander?

I don't know how much simpler I can make it either, you have no case.

Cops don't stop all the speeders. Some are speeding by accident, some by choice, some while escaping from a crime scene and some while intentionally drag racing. The accidental speeders do not have an argument that the drag racers were not punished the same.

Judges don't have to treat everyone the same, nor do bureaucrats.

Is it "fair" that a person who used powder cocaine got a year in prison or probation while a person who used freebase cocaine gets a decade? Is is fair that a person who has a kangaroo rat found on his property can't develop it while a person who dumps toxic waste gets a small fine? Is it fair that I have a client who got fined for miscalculating sales tax based on counties when the state made a deal with Amazon to not collect taxes at all?

Fair? Surely you jest.