We usually hear about the attempted use of social media by the opposite side to discredit a party. But what about the use of social media to bolster a defence in anticipation of litigation?
Andrew Jarvis, a Pennsylvania architect, was concerned the Department of Revenue would audit him and ask him to pay additional taxes once he opened up an office in New York, where he spent a considerable amount of time.
The State changed the domicile requirements in 2012. They conduct residency audits because residents are subject to tax on worldwide income, whereas non-residents are only taxed for the portions of their income which can be attributed to New York. The amount of time a person spends in the state is one of the primary factors used to determine domicile in New York.
Section 605(b)(1)(B) of the New York Tax Law looks at if the person maintains a place of abode in the State, and if they spend more than 182 days of the year there. Proving this factor can be extremely difficult, and can include use of appointment books, credit card records, phone bills, expense reports, frequent flier invoices and travel documents.
So Andrew Jarvis did what any of us would do, and started taking photos in front of his home starting in 2012, often with the daily newspaper or other identifier. He took the photos on his digital camera, which imprinted the date on the bottom of the photos. It was his 26 year-old daughter who discovered them and shared them with the world on @InternalRevenueSelfies.
The 2012 guidelines allow for taxpayers to meet the domicile test using a combination of testimonial and documentary evidence, and acknowledge the difficulty of providing ‘‘clear and convincing’’ evidence that they do not live in the State. The guidelines allow for assumptions to be made on the basis of documentary evidence such as phone bills, demonstrating out of state activity, to conclude the taxpayor was not in New York.
Jarvis supplemented his photos with numerous receipts, electronic toll records and train tickets. His Instagram photos were uploaded at a later date by a third-party, and not contemporaneously. But if they had been, he could have used the geotagging feature of the site to pinpoint his exact location at the time the photo was posted.
Of course it’s not impossible to stage this type of information, and someone could have several outfits prepared and pose with different props to create a gallery like Jarvis did. There’s also a pretty clear motivation to fabricate given the circumstances. Yet considering these tax audits are largely based on circumstantial evidence to begin with, this could help create a plausible case around domicile.
Could Instagram or similar profiles be used to mount a defence in other areas of law? A selfie posted in across town as an alibi to a murder charge? A check-in at a rehab centre to demonstrate compliance with a treatment regime?
These possibilities give rise to a reexamination of a lawyer’s presumptions of social media advice clients, which typically involves suggestions to shut everything down. Instead, perhaps they should continue about their regular activity as they normally would, with the understanding that some of the content will hurt their case, but some of it would help, as would any other form of examination of a witness’ life.