Alice M. Beagles - Page 8

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               Processing of the many civil partnership cases arising out             
          of the coal programs in which the Beagles invested was initially            
          delayed during a criminal investigation of the promoter, Swanton.           
          As we said in Taylor v. Commissioner, 113 T.C. 206, 212 (1999),             
          affd. 9 Fed. Appx. 700 (9th Cir. 2001):                                     
               “It has long been the policy of the I.R.S. to defer                    
               civil assessment and collection until the completion of                
               criminal proceedings.”  Badaracco v. Commissioner, 693                 
               F.2d 298, 302 (3d Cir. 1982), affd. 464 U.S. 386                       
                    This policy is predicated on various                              
               considerations.  The often-cited reason is potential                   
               conflict between avenues of civil and criminal                         
               discovery if parallel civil and criminal cases proceed.                
               Compare Campbell v. Eastland, 307 F.2d 478 (5th Cir.                   
               1962), with Commissioner v. Licavoli, 252 F.2d 268 (6th                
               Cir. 1958), affg. T.C. Memo. 1956-187.  But there are                  
               other considerations such as where a party or witness                  
               may be put in a situation of testifying when the                       
               testimony may be incriminating.  See United States v.                  
               Kordel, 397 U.S. 1 (1970).  There is also the confusion                
               inherent in two cases that are proceeding concurrently.                
               It is for these reasons that generally the courts have                 
               held the civil action in abeyance while the criminal                   
               prosecution goes forth.  See id. at 12 n.27; see also                  
               United States v. Eight Thousand Eight Hundred and Fifty                
               Dollars ($8,850) in United States Currency, 461 U.S.                   
               555 (1983), where the Supreme Court held that the delay                
               by the United States in instituting a civil forfeiture                 
               action pending resolution of criminal charges was                      
          Here, after the criminal investigation was concluded without an             
          indictment, trial commenced in 1988.  Unfortunately, the                    
          litigation process was disrupted because the testimony of Swanton           
          was stricken for violation of Rule 145, dealing with exclusion of           
          witnesses.  See Smith v. Commissioner, 92 T.C. 1349 (1989).                 

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