Florida Department of Revenue (“FDOR”) criminal investigations occur throughout the year. The Department is very active with its investigative cases/efforts and is working efficiently to start and complete its investigations into unfiled sales tax returns and tax collected not remitted. The question often comes up “Can a sales tax criminal investigation affect my immigration status?” The answer is YES and some of the “worst” cases I have seen result from criminal investigations that proceed to the State Attorney’s Office (“SAO”) and involve officers/managers who face criminal charges but are involved in immigration proceedings or face possible deportation stemming from an opened criminal case and the associated resolution. It is important to know about these possible impacts as resolving investigations before getting to the SAO is paramount for any taxpayer that would face immigration consequences from a charge alleging theft of state funds.
Once a criminal case is started, a typical resolution would involve a plea agreement – that might or might not need to allow the charged with time to pay back restitution to the FDOR. The immigration statute contains its own definition of when a conviction has occurred in state criminal court regardless of what the state law says. For immigration purposes, a conviction occurs: (1) Where there is "a formal judgment of guilt of the alien entered by a court" or, (2) "if adjudication of guilt has been withheld, where ... a judge or jury has found the alien guilty, or the alien has entered a plea of guilty or nolo contendere, or has admitted sufficient facts to warrant a finding of guilt, and ... the judge has ordered some form of punishment, penalty, or restraint on the alien's liberty to be imposed."
A conviction can be avoided by a plea agreement. Many counties are now requiring a guilty plea as apart of plea agreements or pretrial intervention (“PTI”) agreements. Immigration cases have held that a guilty plea or finding of guilt, plus any imposition of probation, fine, or jail will equal a conviction for immigration purposes. This means a plea agreement to resolve a criminal sales tax case could result in a “conviction” for immigration purposes depending on the finding of guilt in the plea and its terms. However, an acquittal, a dismissal under a pretrial diversion, or a deferred prosecution, does not result in a “conviction” for immigration purposes. A nolle prosequi would also avoid classification as a “conviction.”
INA § 212(a)(2)(A)(i)(I) states that "Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime" is inadmissible. Theft of state funds under section 212.15(2), Florida Statutes (“F.S.”), requires "an intent to unlawfully deprive or defraud." There is the argument that fraud would fall into the definition of crimes involving moral turpitude for immigration purposes.
In order for a conviction under Florida Statute § 212.15(2) to be an aggravated felony under INA § 101(a)(43)(M)(i), the conviction must have involved fraud or deceit and the loss to the victim or victims to exceed $10,000. Under Florida Statute § 212.15(2), an individual commits theft of state funds when he intends to "unlawfully deprive or defraud the state of its moneys or the use or benefit thereof, fails to remit taxes collected or paid on behalf of a purchaser." Guity pleas, which would also include withholding of adjudication or nolo contendere, generally will implicate immigration consequences and most FDOR investigations include findings of tax and interest due (not including investigative costs) that will exceed the $10,000 threshold per immigration statutes. A third degree felony under section 212.15(2), F.s., goes up to $20,000 in tax collected not remitted.
With the above in mind, a FDOR sales tax investigation that goes to the SAO ultimately means that a taxpayer facing immigration consequences must get a nolle prosequi or be acquitted as diversion frequently is offered only before the case arrives at the SAO for the filing of formal charges and an active criminal case. This is a significant limitation from the outset to cost effectively resolve the case – that necessarily involves a restitution amount to the FDOR. The implications from plea agreements trigger many levels of risk for immigration consequences apart from the “simple” $10,000 loss threshold under immigration statutes.
This is important to know at the outset as many criminal investigators now use titles of “Tax Investigator” or “Financial Investigator” when “Criminal Investigator” was once listed on the business card and/or email signature. Many investigations also don’t involve direct contact to the taxpayer until late in the process. At an meeting or interview, the investigator should expressly indicate that the taxpayer is entitled to be represented by an attorney and that it can terminate the meeting/interview at any time. However, this can be lost on the taxpayer as many situations involve apparently harmless requests to “understand what happened” without comprehending the serious consequences of the active FDOR investigation – enhanced for those that could face immigration consequences from the matter proceeding to the SAO.
As I am not an immigration attorney, I am not aware of the possible exceptions or waivers that might be available during immigration proceedings. However, I an aware of the difficulty the arises when a criminal case has gone to the SAO for someone who would face immigration consequences from the case. Knowing these risks early can help allow steps to be taken to avoid getting to the SAO and formal criminal charges that would either resolve the investigation at an earlier point or would work to properly resolve the situation before a formal case is opened and events occurring that would trigger immigration consequences from a possible resolution.
It is possible that there could appear to be similarities in initial FDOR communications for an audit or investigation. The ramifications, however, are very different. An audit is s civil matter where audit findings can be paid to the Department over time outside of the criminal justice system. The criminal investigation necessarily heads toward a venue that can trigger dire immigration consequences for individuals that would have been better if avoided at an earlier point in time.
We have experience handling all FDOR activities – investigations and audits included. As the above illustrates, it is important to know exactly what is occurring with the FDOR to know the possible implications – especially when immigration consequences are implicated. It is never to early to address those issues. Candidly, my preference is to address resolving criminal investigations as early as possible in the process to avoid having a mater even be referred over to the SAO to consider filing formal charges. To do this, a taxpayer or its tax professional needs to be able to identify the situation and associated risk early to take quick and effective steps to resolve the issue with the FDOR to avoid court hearings – criminal or immigration.
About the author: Mr. Parker is a partner in the Law Offices of Moffa, Sutton, & Donnini, P.A., based in the firm's Tampa office. Mr. Parker's practice concentrates on sales and use tax and includes criminal defense of sales tax cases and state tax audits/controversies proceeding from audit through administrative litigation involving sales and use tax and all other state taxes including reemployment tax, communication service tax, and cigarette & tobacco tax. Mr. Parker also handles matters involving the Department of Business and Personal Regulation and Office of Financial Regulation and the industries they oversee. Mr. Parker received his accounting degree, law degree, and L.L.M. in Taxation from the University of Florida. You can lean more about Matthew on his firm bio.
About the law firm: At the Law Office of Moffa, Sutton, & Donnini, PA, our primary practice area is Florida taxes, with a very heavy emphasis in Florida sales and use tax. We have defended Florida businesses against the Florida Department of Revenue since 1991 and have over 100 years of cumulative sales tax experience within our firm. Our partners are both CPAs/Accountants and Attorneys, so we understand both the accounting side of the situation as well as the legal side. We represent taxpayers and business owners from the entire state of Florida. Call our offices today for a FREE INITIAL CONSULTATION to confidentially discuss how we can help put this nightmare behind you.
FL Sales Tax Criminal Investigation - Vehicle Registration Companies Beware, published July 7, 2024, by Matthe Parker, Esq.
Florida Sales Tax Arrest – Fort Myers Smoke Shop, published October 11, 2025, by James Sutton, CPA, Esq.
Florida Sales Tax Arrest – Ft Lauderdale Car Dealer, published June 9, 2025, by James Sutotn, CPA, Esq.
Florida Sales Tax Audit: Construction Contractors, published November 8, 2025, by James Sutton, CPA, Esq.
FL Sales Tax - Voluntary Disclosure Program, published April 9, 2018, by Moffa, Sutton & Donnini, P.A.