Zappers and Employment Tax Fraud
Richard Thompson Ainsworth
Boston University School of Law Working Paper 13-3
(January 28, 2013)
Beyond the grey area of worker misclassifications and general employment tax irregularities there are darker employment relationships where workers are intentionally paid in cash “off-the-books” or “under-the-table.” Grey employment relationships present civil enforcement issues that may become criminal; darker-relationships are criminal from the beginning. Zappers are found on the dark side.
Zappers are fraud-technologies that automatically (and remotely) skim cash from electronic cash registers (ECRs) or back room point of sales (POS) systems. Globally, tax auditors are finding that Zappers frequently provide the cash that is used to compensate “under-the-table” workers. In fact, a Zapper appears to be at the heart of the allegations in Ohio where seven I-HOP franchises allegedly used Zappers (with remote access functionality likely downloaded free from the Internet) to skim cash from their operations. The cash was allegedly used to pay more than 200 illegal immigrants “off-the-books.”
This paper explores the relationship between Zappers and criminal employment tax fraud. It urges greater Federal/State enforcement efforts on the front end and adoption of secure technology-based solutions as part of the criminal restitution on the back end. Security-based restitution could either be statutorily mandated or court imposed. Zappers are far too easy to re-install if an owner is inclined to do so. There is technology that will detect (and prevent the use of) Zappers.
Based on the published sample of 98 employment tax fraud cases pursued by the IRS over the past three years, and which provide the foundation for the Federal/State QETP initiative, it is clear that there are two major types of employment tax fraud – embezzlement frauds and collusive frauds.
Embezzlements tend to be short-lived, although they can still involve large tax losses. Embezzlements tend be identified after two years when third-party payroll providers are involved, but can last longer when the embezzler is the employer.
Collusive employment tax frauds are more difficult to detect, and as a result tend to last longer. Collusive frauds are vulnerable when the large amounts of cash needed to feed the fraud starts to raise suspicion. Collusive frauds facilitate further frauds in Earned Income Tax Credits, Child and Dependent Care Credits, and Additional Child Tax Credits as well as Medicare, food stamp and welfare fraud.
If full tax recovery is likely to be Pyrrhic when employment tax fraud lasts for more than a few years, then thoughtful use should be made of the plea bargain process. We can deepen our understanding of sales suppression technology in the US if we make good use of the cases we have.
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Richard Thompson Ainsworth Contact Information
LL.M. Tax Program
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
Phone: (781) 773-1052
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