IRS Changes Civil Forfeiture Rules Regarding Cash Deposits

Under IRS rules intended to prevent money laundering by criminals and terrorists, frequent cash deposits by businesses fell within scope of IRS right to seize the business's cash deposits.

By , J.D. USC Gould School of Law

Carole Hinder owned and operated a small restaurant called Mrs. Lady's Mexican Food in Spirit Lake, Iowa for 38 years. Like some small restaurants, she required that all her customers pay in cash. As a result, she made frequent cash deposits in her local bank to avoid having to keep large amounts of cash at her business premises. Her deposits were always for less than $10,000.

To her amazement, the IRS seized all the money in her checking account, totaling almost $33,000, claiming she had violated the federal anti-money laundering law. The IRS also informed her that it was keeping the seized money, even though it wasn't charging her with a crime.

Banks and Other Financial Institutions Must Report Large Cash Transactions

To help prevent money laundering by criminals and terrorists, and tax evasion, banks and other financial institutions are required to report large cash transactions to the IRS. They must file FINCEN Form 104, Currency Transactions Report, whenever a person engages in cash transactions involving more than $10,000 in a single day. The report must contain the person's name, address, Social Security number, and other identifying information. Moreover, the bank must verify the person's identity by demanding to see a driver's license, passport, or other valid ID.

When Multiple Transactions Must Be Treated as One

People often try to avoid being reported to the government by breaking up their transactions into multiple amounts that are all less than $10,000. This is called "structuring" and is illegal if done to avoid the reporting requirement. It also usually doesn't work.

Multiple currency transactions must be treated as a single transaction if the bank knows that: (1) they are made by or on behalf of the same person, and (2) they result in either cash deposits or cash withdrawals totaling more than $10,000 during any one normal business day. In addition, banks and other financial institutions must file a "Suspicious Activity Report" with the IRS if they suspect someone is trying to evade the reporting rules—for example, regularly engaging in currency transactions that are just below $10,000.

Fines and Imprisonment

A fine of up to $250,000, or imprisonment up to five years, or both, may be imposed on a person who willfully violates the anti-structuring law. (31 USC Sec. 5322(a)). However, a person must be criminally prosecuted by the government to get fined or imprisoned.

As a cheaper and easier alternative, in such cases the government often files a lawsuit and gets a court order allowing it to seize the money--a process called civil forfeiture. Civil forfeiture was designed to enable the government to take money or property suspected of being involved in a crime. However, with civil forfeitures, a person can have his or her money or property permanently taken without ever being convicted of or even charged with a crime. To get the money or property back, it is necessary to intervene in the lawsuit filed by the government against their property—a costly and difficult process.

Was This an Example of Illegal Structuring?

IRS investigators apparently believed that Carole Hinder was engaging in illegal structuring when they saw that she had a pattern of making frequent cash deposits of less than $10,000, so they had her money seized. However, Hinder says she knew nothing about the anti-structuring law and had no intent to evade it. Making multiple cash deposits of less than $10,000 is not illegal if there is no intent to avoid the reporting requirement.

Fortunately, Carole Hinder's story had a happy ending. Her case made The New York Times ("Law Lets I.R.S. Seize Accounts on Suspicion, No Crime Required" (Oct. 25, 2014)), which pointed out that Hinder was far from the only seemingly innocent businessperson who has had money seized by the IRS. Hinder eventually got her money back, and the IRS helped several hundred other property owners with cases like hers get their money back as well.

Change In IRS Policies

Even more important, the resulting uproar led the IRS to change its civil forfeiture policies for funds that come from legal sources—that is, from legitimate businesses like Carole Hinder's. Under the revised policy, which took effect in 2015, the IRS will seize legally sourced funds due to structuring only if (1) there are exceptional circumstances justifying the seizure and forfeiture and (2) the case is approved by the Director of Field Operations.

The IRS's revised seizure and forfeiture policies do not apply to money from illegal sources such as money laundering or criminal activity other than structuring. Indeed, the IRS and Department of Justice promised to focus on people that structure financial transactions to hide significant criminal activity. The result of these policy changes is that the number of civil seizures and forfeitures have declined dramatically.

Meanwhile, proposed legislation has been pending in Congress that would curtail the IRS's civil seizure and forfeiture powers. One proposed bill would limit forfeiture to cases where the funds are from an illegal source or used to conceal illegal activity. This would effectively codify into law the IRS's 2015 policy change and prevent the IRS from ever changing the policy.

Talk to a Tax Attorney

Need a lawyer? Start here.

How it Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you
Get Professional Help

Talk to a Tax attorney.

How It Works

  1. Briefly tell us about your case
  2. Provide your contact information
  3. Choose attorneys to contact you