AJ Antimony
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I'm disappointed to see only one person mention "Freedom to Fascism."
I really expected every poster to say something like "Hey, is that the same case mentioned in Freedom to Fascism?"
Court Finds Man not Required to File Income Tax Returns on Wages
- Thread starter PatriotOne
- Start date
I'm disappointed to see only one person mention "Freedom to Fascism."
I really expected every poster to say something like "Hey, is that the same case mentioned in Freedom to Fascism?"
here is the original ruling denying the original 4 motions to dismiss.
COUNSEL: [*1] For Tommy K Cryer, Defendant: George E Harp , LEAD ATTORNEY, Shreveport, LA.
For USA, Plaintiff: Earl M Campbell, LEAD ATTORNEY, U S Attorneys Office, Shreveport, LA.
JUDGES: S. MAURICE HICKS, JR., UNITED STATES DISTRICT JUDGE. MAGISTRATE HORNSBY.
OPINION BY: S. MAURICE HICKS, JR.
OPINION
MEMORANDUM ORDER
On October 25, 2006, the Grand Jury indicted the defendant for tax evasion violations under 26 U.S.C. § 7201. Before the Court are four motions to dismiss that indictment. For the reasons which follow, the motions to dismiss are denied.
I. First Motion to Dismiss
In his first motion to dismiss, the defendant contends that the indictment fails to allege affirmative acts of tax. HN1To obtain a conviction under Section 7201, the Government must prove willfulness, a substantial tax deficiency, and an affirmative act constituting an attempted evasion of the tax. Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L. Ed. 418, 1943 C.B. 1038 (1943). HN2Section 7201 contemplates an attempt "in any manner" and, as the Supreme Court has stated, a willful attempt may be inferred from any conduct having the likely effect of misleading or concealing. Spies, 317 U.S. at 499, 63 S.Ct. at 368. [*2]
The indictment charges the defendant with creating a trust, listing himself as the trustee, then failing to file a tax return on behalf of the trust to report the payment of dividends, interest and stock income to the trust, thereby concealing the receipt of certain sources of income from the Internal Revenue Service. [Doc. No. 1]. The Court finds that a willful attempt may be inferred from the charged conduct. Accordingly, the indictment charges the defendant with affirmative acts of tax evasion pursuant to Spies v. United States. The motion to dismiss [Doc. No. 9] is DENIED.
II. Second Motion to Dismiss
In his second motion, the defendant claims that the indictment should be dismissed because the Secretary of the Treasury failed to comply with the Administrative Procedure Act (APA) by not publishing certain information in the Federal Register. This claim is without merit. See United States v. Bowers, 920 F.2d 220, 222 (4th Cir. 1990) (upholding defendants' conviction under 26 U.S.C. § 7201). The second motion to dismiss [Doc. No. 20] is DENIED.
III. Third Motion to Dismiss
In his third motion [*3] to dismiss, the defendant claims that he did not create the Trust referenced in the indictment to evade his tax obligation and that the Trust did not yield any taxable income. These are disputed fact issues which are inappropriate for resolution in pretrial motions. The third motion to dismiss [Doc. No. 21] is DENIED.
IV. Fourth Motion to Dismiss
Defendant's fourth motion to dismiss contends that his income, which was derived through the practice of law in Louisiana, is not "taxable income" as defined by the Internal Revenue Code. Defendant's contention is without merit. See Comm'r v. Glenshaw Glass Co., 348 U.S. 426, 75 S. Ct. 473, 99 L. Ed. 483, 1955-1 C.B. 207 (1955); Lonsdale v. Commissioner, 661 F.2d 71 (5th Cir. 1981). See also Sochia v. Federal-Republic's Cent. Government, Slip Copy, 2006 U.S. Dist. LEXIS 85939, 2006 WL 3372509 (W.D.Tex. 2006) and authorities cited therein. The fourth motion to dismiss [Doc. No. 25] is DENIED.
Based on the foregoing:
IT IS ORDERED that Defendant's motions to dismiss the indictment [Doc. Nos. 9, 20, 21 & 25] are hereby DENIED.
THUS DONE AND SIGNED in Shreveport, Louisiana this 19th day of March, 2007.
S. MAURICE [*4] HICKS, JR.
UNITED STATES DISTRICT JUDGE
COUNSEL: [*1] For Tommy K Cryer, Defendant: George E Harp , LEAD ATTORNEY, Shreveport, LA.
For USA, Plaintiff: Earl M Campbell, LEAD ATTORNEY, U S Attorneys Office, Shreveport, LA.
JUDGES: S. MAURICE HICKS, JR., UNITED STATES DISTRICT JUDGE. MAGISTRATE HORNSBY.
OPINION BY: S. MAURICE HICKS, JR.
OPINION
MEMORANDUM ORDER
On October 25, 2006, the Grand Jury indicted the defendant for tax evasion violations under 26 U.S.C. § 7201. Before the Court are four motions to dismiss that indictment. For the reasons which follow, the motions to dismiss are denied.
I. First Motion to Dismiss
In his first motion to dismiss, the defendant contends that the indictment fails to allege affirmative acts of tax. HN1To obtain a conviction under Section 7201, the Government must prove willfulness, a substantial tax deficiency, and an affirmative act constituting an attempted evasion of the tax. Spies v. United States, 317 U.S. 492, 63 S.Ct. 364, 87 L. Ed. 418, 1943 C.B. 1038 (1943). HN2Section 7201 contemplates an attempt "in any manner" and, as the Supreme Court has stated, a willful attempt may be inferred from any conduct having the likely effect of misleading or concealing. Spies, 317 U.S. at 499, 63 S.Ct. at 368. [*2]
The indictment charges the defendant with creating a trust, listing himself as the trustee, then failing to file a tax return on behalf of the trust to report the payment of dividends, interest and stock income to the trust, thereby concealing the receipt of certain sources of income from the Internal Revenue Service. [Doc. No. 1]. The Court finds that a willful attempt may be inferred from the charged conduct. Accordingly, the indictment charges the defendant with affirmative acts of tax evasion pursuant to Spies v. United States. The motion to dismiss [Doc. No. 9] is DENIED.
II. Second Motion to Dismiss
In his second motion, the defendant claims that the indictment should be dismissed because the Secretary of the Treasury failed to comply with the Administrative Procedure Act (APA) by not publishing certain information in the Federal Register. This claim is without merit. See United States v. Bowers, 920 F.2d 220, 222 (4th Cir. 1990) (upholding defendants' conviction under 26 U.S.C. § 7201). The second motion to dismiss [Doc. No. 20] is DENIED.
III. Third Motion to Dismiss
In his third motion [*3] to dismiss, the defendant claims that he did not create the Trust referenced in the indictment to evade his tax obligation and that the Trust did not yield any taxable income. These are disputed fact issues which are inappropriate for resolution in pretrial motions. The third motion to dismiss [Doc. No. 21] is DENIED.
IV. Fourth Motion to Dismiss
Defendant's fourth motion to dismiss contends that his income, which was derived through the practice of law in Louisiana, is not "taxable income" as defined by the Internal Revenue Code. Defendant's contention is without merit. See Comm'r v. Glenshaw Glass Co., 348 U.S. 426, 75 S. Ct. 473, 99 L. Ed. 483, 1955-1 C.B. 207 (1955); Lonsdale v. Commissioner, 661 F.2d 71 (5th Cir. 1981). See also Sochia v. Federal-Republic's Cent. Government, Slip Copy, 2006 U.S. Dist. LEXIS 85939, 2006 WL 3372509 (W.D.Tex. 2006) and authorities cited therein. The fourth motion to dismiss [Doc. No. 25] is DENIED.
Based on the foregoing:
IT IS ORDERED that Defendant's motions to dismiss the indictment [Doc. Nos. 9, 20, 21 & 25] are hereby DENIED.
THUS DONE AND SIGNED in Shreveport, Louisiana this 19th day of March, 2007.
S. MAURICE [*4] HICKS, JR.
UNITED STATES DISTRICT JUDGE
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Here's the Dist. cts ruling to dismiss the 3d and 4th charges, figured some of you might appreciate having a look-see.
COUNSEL: [*1] For Tommy K Cryer (1), Defendant: George E Harp , LEAD ATTORNEY, Shreveport, LA.
For USA, Plaintiff: Earl M Campbell, LEAD ATTORNEY, U S Attorneys Office (Shreveport), Shreveport, LA.
JUDGES: S. MAURICE HICKS, JR., UNITED STATES DISTRICT JUDGE. MAGISTRATE JUDGE HORNSBY.
OPINION BY: S. MAURICE HICKS, JR.
OPINION
MEMORANDUM RULING
Before the Court is defendant's motion to dismiss for duplicity [Doc. No. 48]. The motion contends that Counts 3 and 4 of the superceding indictment (pursuant to 26 U.S.C. § 7203) are lesser included charges of Counts 1 and 2 of the superceding indictment (pursuant to 26 U.S.C. § 7201). Accordingly, defendant seeks to have Counts 3 and 4 dismissed. For the reasons which follow, the motion is GRANTED.
A. Earlier Fifth Circuit Jurisprudence - Applying the "Inherent Relationship" Approach
In the 1970s, the Fifth Circuit held that a violation of Section 7203 (misdemeanor failure to file a tax return) was a lesser included charge of Section 7201 (felony tax evasion) and that a defendant therefore could not be sentenced under both statutes. See United States v. Buckley, 586 F.2d 498 (5th Cir. 1978); [*2] United States v. Newman, 468 F.2d 791 (5th Cir. 1972). Although the government conceded this point in both cases, the Fifth Circuit found that since Congress did not intend for the defendant to be punished under both statutes, the misdemeanor was a "lesser included" charge of the felony. Buckley, 586 F.2d at 504; Newman, 468 F.2d at 796.
While neither of these opinions discussed the standard by which the court analyzed whether a charge was a "lesser included" one, the reference to Congressional intent clearly suggests that the court was applying the "inherent relationship" approach. This approach considers one offense to be included in another when the facts as alleged and proved support the inference that the defendant committed the less serious crime, and when an "inherent relationship" exists between the two offenses such that both relate to the protection of the same interests and the proof of the greater offense can generally be expected to require proof of the lesser one. See Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L. Ed. 2d 734 (1989).
B. The Supreme Court Rejects the "Inherent Relationship" [*3] Approach in Favor of the "Statutory Elements" Approach.
In Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L. Ed. 2d 734 (1989), HN1the Supreme Court expressly rejected the lenient "inherent relationship" approach in favor of the strict "statutory elements" test, which involves an objective, textual comparison of criminal statutes and does not depend on inferences that may be drawn on evidence introduced at trial. Id. at 706, 109 S.Ct. at 1445. The Schmuck Court found support for the "statutory elements" test in the language of Rule 31(c), which provides: "A defendant may be found guilty of any of the following: (1) an offense necessarily included in the offense charged; (2) an attempt to commit the offense charged; or (3) an attempt to commit an offense necessarily included in the offense charged, if the attempt is an offense in its own right." (Emphasis added). HN2The Schmuck court stated:
The Rule speaks in terms of an offense that is "necessarily included in the offense charged."
This language suggests that the comparison to be drawn is between offenses. Since offenses are statutorily defined, that comparison is appropriately [*4] conducted by reference to the statutory elements of the offenses in question, and not, as the inherent relationship approach would mandate, by reference to conduct proved at trial regardless of the statutory definitions. Furthermore, the language of Rule 31(c) speaks of the necessary inclusion of the lesser offense in the greater. While the elements test is true to this requirement, the inherent relationship approach dispenses with the required relationship of necessary inclusion: the inherent relationship approach permits a lesser included offense instruction even if the proof of one offense does not invariably require proof of the other as long as the two offenses serve the same legislative goals.
Id. at 717, 109 S.Ct. at 1451.
The Fifth Circuit later recognized that pursuant to Schmuck, the "elements approach" is the proper analysis. See United States v. Browner, 937 F.2d 165 (5th Cir. 1991). As HN3the Fifth Circuit explained:
Under this test, an offense is not lesser included unless each statutory element of the lesser offense is also present in the greater offense. For this purpose, the comparison of the statutory elements [*5] between the lesser and greater offenses parallels the statutory elements analysis conducted under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) for double jeopardy purposes.
Id. at 167-168 (emphasis added). In turn, HN4Blockburger provides:
The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Gavieres v. United States, 220 U.S. 338, 342, 31 S. Ct. 421, 55 L. Ed. 489, and authorities cited. In that case this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433: 'A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.'
Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L. Ed. 306 (1932) [*6] (emphasis added).
Accordingly, in order to determine whether Section 7203 is a lesser included charge of Section 7201, this court must apply the "statutory elements" approach adopted in Schmuck as explained by the Fifth Circuit in Browner.
C. Applying the "Statutory Elements" Approach to Sections 7201 and 7203.
The offenses charged in Counts 1 and 2 HN5(felony tax evasion) pursuant to 26 U.S.C. § 7201 have three elements: (1) willfulness; (2) the existence of a tax deficiency; and (3) an affirmative act constituting an evasion or attempted evasion of the tax. Sansone, 380 U.S. at 351, 85 S.Ct. at 1010; United States v. Chesson, 933 F.2d 298, 304 (5th Cir.), cert. denied, 502 U.S. 981, 112 S. Ct. 583, 116 L. Ed. 2d 608 (1991). HN6The elements of the misdemeanors charged in Counts 3 and 4 (failing to make a return) pursuant to 26 U.S.C. § 7203 are (1) willfulness and (2) failure to make a return when due. United States v. DeTar, 832 F.2d 1110, 1113 (9th Cir.1987).
A defendant can certainly be found guilty of violating Section 7203 but not Section 7201 if the [*7] government fails to prove an affirmative act of evasion. However, the government argues that a defendant can also be found guilty of violating Section 7201 without violating Section 7203, for example, by filing a fraudulent return or filing a return without remitting payment. [Doc. No. 55 at 4 (citing United States v. Becker, 965 F.2d 383, 391 (7th Cir. 1992).] However, filing a fraudulent return or a return without payment would still violate Section 7203, since the statute also requires the payment of a tax "at the time . . . required by law." Further, while this court is mindful that the Seventh, Sixth and Ninth Circuits have found that Section 7203 is not a lesser included charge of 7201, this court is bound to follow the Fifth Circuit's application of the "statutory elements" test adopted in Schmuck.
As the Fifth Circuit stated in United States v. Doyle, 956 F.2d 73, 74-75 (5th Cir. 1992):
HN7A defendant is entitled to a lesser-included offense instruction when the elements of the lesser offense are a subset of the elements of the charged offense and the evidence would permit the jury to rationally conclude that the defendant [*8] was guilty of the lesser offense but not guilty of the charged offense. United States v. Browner, 889 F.2d 549, 550-51 (5th Cir.1989). There must be a disputed issue of fact as to an essential element of the charged offense which is not material to the lesser-included offense. Sansone v. United States, 380 U.S. 343, 350-53, 85 S.Ct. 1004, 1009-11, 13 L.Ed.2d 882 (1965).
Id. at 74-75. HN8Comparing the elements of Section 7203 with the elements of Section 7201, the Fifth Circuit stated that it was "undisputed that § 7203 [the misdemeanor] defines a lesser included offense of § 7201 [the felony]." Id. at 74-75 (5th Cir. 1992)(citing DeTar, 832 F.2d at 1113).
HN9According to the Fifth Circuit:
The critical difference between the two crimes is that the charged felony offense requires an affirmative act constituting the evasion. That is, felony tax evasion requires willful commission, whereas the misdemeanor merely requires willful omission. Spies v. United States, 317 U.S. 492, 498-99, 63 S.Ct. 364, 367-68, 87 L.Ed. 418, 1943 C.B. 1038 (1943). "Where there is, in a § 7201 [felony] prosecution, a disputed [*9] issue of fact as to the existence of the requisite affirmative commission in addition to the § 7203 omission, a defendant would, of course, be entitled to a lesser-included offense charge based on § 7203." Sansone, 380 U.S. at 351, 85 S.Ct. at 1010. Although the willful failure to file a tax return is sufficient to sustain a misdemeanor conviction, it is insufficient to sustain the felony conviction absent some other willful, affirmative act of commission constituting an attempt to evade the payment of tax. United States v. Masat, 896 F.2d 88, 98 (5th Cir.1990).
Id. at 75. Accordingly, the Fifth Circuit, applying the Schmuck "statutory elements" test as stated in United States v. Browner, 889 F.2d 549, 550-51 (5th Cir. 1989), found that Section 7203 was a lesser included charge of Section 7201. 1
FOOTNOTES
1 While the government is correct that the Fifth Circuit did not cite Schmuck in the Doyle opinion, the court did cite Browner which expressly recognized the "statutory elements" test adopted in Schmuck.
[*10] Accordingly, under the relevant Fifth Circuit jurisprudence, Counts 3 and 4 (failure to file) are dismissed for multiplicity. However, as requested by the government, the jury will be charged with the elements of a violation of Section 7203 as a lesser included charge of Section 7201 (tax evasion).
Therefore:
IT IS ORDERED that defendant's motion to dismiss Counts 3 and 4 of the superceding indictment [Doc. No. 48] is hereby GRANTED and those Counts are hereby DISMISSED.
THUS DONE AND SIGNED in Shreveport, Louisiana this 20th day of June, 2007.
COUNSEL: [*1] For Tommy K Cryer (1), Defendant: George E Harp , LEAD ATTORNEY, Shreveport, LA.
For USA, Plaintiff: Earl M Campbell, LEAD ATTORNEY, U S Attorneys Office (Shreveport), Shreveport, LA.
JUDGES: S. MAURICE HICKS, JR., UNITED STATES DISTRICT JUDGE. MAGISTRATE JUDGE HORNSBY.
OPINION BY: S. MAURICE HICKS, JR.
OPINION
MEMORANDUM RULING
Before the Court is defendant's motion to dismiss for duplicity [Doc. No. 48]. The motion contends that Counts 3 and 4 of the superceding indictment (pursuant to 26 U.S.C. § 7203) are lesser included charges of Counts 1 and 2 of the superceding indictment (pursuant to 26 U.S.C. § 7201). Accordingly, defendant seeks to have Counts 3 and 4 dismissed. For the reasons which follow, the motion is GRANTED.
A. Earlier Fifth Circuit Jurisprudence - Applying the "Inherent Relationship" Approach
In the 1970s, the Fifth Circuit held that a violation of Section 7203 (misdemeanor failure to file a tax return) was a lesser included charge of Section 7201 (felony tax evasion) and that a defendant therefore could not be sentenced under both statutes. See United States v. Buckley, 586 F.2d 498 (5th Cir. 1978); [*2] United States v. Newman, 468 F.2d 791 (5th Cir. 1972). Although the government conceded this point in both cases, the Fifth Circuit found that since Congress did not intend for the defendant to be punished under both statutes, the misdemeanor was a "lesser included" charge of the felony. Buckley, 586 F.2d at 504; Newman, 468 F.2d at 796.
While neither of these opinions discussed the standard by which the court analyzed whether a charge was a "lesser included" one, the reference to Congressional intent clearly suggests that the court was applying the "inherent relationship" approach. This approach considers one offense to be included in another when the facts as alleged and proved support the inference that the defendant committed the less serious crime, and when an "inherent relationship" exists between the two offenses such that both relate to the protection of the same interests and the proof of the greater offense can generally be expected to require proof of the lesser one. See Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L. Ed. 2d 734 (1989).
B. The Supreme Court Rejects the "Inherent Relationship" [*3] Approach in Favor of the "Statutory Elements" Approach.
In Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L. Ed. 2d 734 (1989), HN1the Supreme Court expressly rejected the lenient "inherent relationship" approach in favor of the strict "statutory elements" test, which involves an objective, textual comparison of criminal statutes and does not depend on inferences that may be drawn on evidence introduced at trial. Id. at 706, 109 S.Ct. at 1445. The Schmuck Court found support for the "statutory elements" test in the language of Rule 31(c), which provides: "A defendant may be found guilty of any of the following: (1) an offense necessarily included in the offense charged; (2) an attempt to commit the offense charged; or (3) an attempt to commit an offense necessarily included in the offense charged, if the attempt is an offense in its own right." (Emphasis added). HN2The Schmuck court stated:
The Rule speaks in terms of an offense that is "necessarily included in the offense charged."
This language suggests that the comparison to be drawn is between offenses. Since offenses are statutorily defined, that comparison is appropriately [*4] conducted by reference to the statutory elements of the offenses in question, and not, as the inherent relationship approach would mandate, by reference to conduct proved at trial regardless of the statutory definitions. Furthermore, the language of Rule 31(c) speaks of the necessary inclusion of the lesser offense in the greater. While the elements test is true to this requirement, the inherent relationship approach dispenses with the required relationship of necessary inclusion: the inherent relationship approach permits a lesser included offense instruction even if the proof of one offense does not invariably require proof of the other as long as the two offenses serve the same legislative goals.
Id. at 717, 109 S.Ct. at 1451.
The Fifth Circuit later recognized that pursuant to Schmuck, the "elements approach" is the proper analysis. See United States v. Browner, 937 F.2d 165 (5th Cir. 1991). As HN3the Fifth Circuit explained:
Under this test, an offense is not lesser included unless each statutory element of the lesser offense is also present in the greater offense. For this purpose, the comparison of the statutory elements [*5] between the lesser and greater offenses parallels the statutory elements analysis conducted under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) for double jeopardy purposes.
Id. at 167-168 (emphasis added). In turn, HN4Blockburger provides:
The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not. Gavieres v. United States, 220 U.S. 338, 342, 31 S. Ct. 421, 55 L. Ed. 489, and authorities cited. In that case this court quoted from and adopted the language of the Supreme Court of Massachusetts in Morey v. Commonwealth, 108 Mass. 433: 'A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.'
Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L. Ed. 306 (1932) [*6] (emphasis added).
Accordingly, in order to determine whether Section 7203 is a lesser included charge of Section 7201, this court must apply the "statutory elements" approach adopted in Schmuck as explained by the Fifth Circuit in Browner.
C. Applying the "Statutory Elements" Approach to Sections 7201 and 7203.
The offenses charged in Counts 1 and 2 HN5(felony tax evasion) pursuant to 26 U.S.C. § 7201 have three elements: (1) willfulness; (2) the existence of a tax deficiency; and (3) an affirmative act constituting an evasion or attempted evasion of the tax. Sansone, 380 U.S. at 351, 85 S.Ct. at 1010; United States v. Chesson, 933 F.2d 298, 304 (5th Cir.), cert. denied, 502 U.S. 981, 112 S. Ct. 583, 116 L. Ed. 2d 608 (1991). HN6The elements of the misdemeanors charged in Counts 3 and 4 (failing to make a return) pursuant to 26 U.S.C. § 7203 are (1) willfulness and (2) failure to make a return when due. United States v. DeTar, 832 F.2d 1110, 1113 (9th Cir.1987).
A defendant can certainly be found guilty of violating Section 7203 but not Section 7201 if the [*7] government fails to prove an affirmative act of evasion. However, the government argues that a defendant can also be found guilty of violating Section 7201 without violating Section 7203, for example, by filing a fraudulent return or filing a return without remitting payment. [Doc. No. 55 at 4 (citing United States v. Becker, 965 F.2d 383, 391 (7th Cir. 1992).] However, filing a fraudulent return or a return without payment would still violate Section 7203, since the statute also requires the payment of a tax "at the time . . . required by law." Further, while this court is mindful that the Seventh, Sixth and Ninth Circuits have found that Section 7203 is not a lesser included charge of 7201, this court is bound to follow the Fifth Circuit's application of the "statutory elements" test adopted in Schmuck.
As the Fifth Circuit stated in United States v. Doyle, 956 F.2d 73, 74-75 (5th Cir. 1992):
HN7A defendant is entitled to a lesser-included offense instruction when the elements of the lesser offense are a subset of the elements of the charged offense and the evidence would permit the jury to rationally conclude that the defendant [*8] was guilty of the lesser offense but not guilty of the charged offense. United States v. Browner, 889 F.2d 549, 550-51 (5th Cir.1989). There must be a disputed issue of fact as to an essential element of the charged offense which is not material to the lesser-included offense. Sansone v. United States, 380 U.S. 343, 350-53, 85 S.Ct. 1004, 1009-11, 13 L.Ed.2d 882 (1965).
Id. at 74-75. HN8Comparing the elements of Section 7203 with the elements of Section 7201, the Fifth Circuit stated that it was "undisputed that § 7203 [the misdemeanor] defines a lesser included offense of § 7201 [the felony]." Id. at 74-75 (5th Cir. 1992)(citing DeTar, 832 F.2d at 1113).
HN9According to the Fifth Circuit:
The critical difference between the two crimes is that the charged felony offense requires an affirmative act constituting the evasion. That is, felony tax evasion requires willful commission, whereas the misdemeanor merely requires willful omission. Spies v. United States, 317 U.S. 492, 498-99, 63 S.Ct. 364, 367-68, 87 L.Ed. 418, 1943 C.B. 1038 (1943). "Where there is, in a § 7201 [felony] prosecution, a disputed [*9] issue of fact as to the existence of the requisite affirmative commission in addition to the § 7203 omission, a defendant would, of course, be entitled to a lesser-included offense charge based on § 7203." Sansone, 380 U.S. at 351, 85 S.Ct. at 1010. Although the willful failure to file a tax return is sufficient to sustain a misdemeanor conviction, it is insufficient to sustain the felony conviction absent some other willful, affirmative act of commission constituting an attempt to evade the payment of tax. United States v. Masat, 896 F.2d 88, 98 (5th Cir.1990).
Id. at 75. Accordingly, the Fifth Circuit, applying the Schmuck "statutory elements" test as stated in United States v. Browner, 889 F.2d 549, 550-51 (5th Cir. 1989), found that Section 7203 was a lesser included charge of Section 7201. 1
FOOTNOTES
1 While the government is correct that the Fifth Circuit did not cite Schmuck in the Doyle opinion, the court did cite Browner which expressly recognized the "statutory elements" test adopted in Schmuck.
[*10] Accordingly, under the relevant Fifth Circuit jurisprudence, Counts 3 and 4 (failure to file) are dismissed for multiplicity. However, as requested by the government, the jury will be charged with the elements of a violation of Section 7203 as a lesser included charge of Section 7201 (tax evasion).
Therefore:
IT IS ORDERED that defendant's motion to dismiss Counts 3 and 4 of the superceding indictment [Doc. No. 48] is hereby GRANTED and those Counts are hereby DISMISSED.
THUS DONE AND SIGNED in Shreveport, Louisiana this 20th day of June, 2007.
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This is not huge, this is simply two misdemeanor charges going to a jury, and the jury finding that the individual lacked the required culpability to convict him. Legal precedent isn't set by jury decisions, it's set by judicial decision. In this case, the judicial decisions pertained to the duplicity of the criminal statutes. Essentially the judge determined that counts 3 and 4 were pretty much duplicates of counts 1 and 2 and therefore dismissed them. That only left the misdemeanor counts 1 and 2, and those are the ones the jury decided not to convict on.
The only thing this affects (and it's a Federal district court ruling so hardly controlling in the broad sense) is the ability of a federal prosecutor to bring the original 4 charges against someone together. Even then, if the pros. is feeling ballsy he may do so anyway.
Phantom
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There are some great videos about income tax on google video.
Ones I recommend are as follow:
Tom Cryer, the Shreveport Lawyer who has taken on the IRS, who explains why most Americans are not liable for the income tax.
FEDERAL INCOME TAX Part 1
FEDERAL INCOME TAX Part 2
FEDERAL INCOME TAX Part 3
FEDERAL INCOME TAX Part 4
An historical documentary explains how international bankers gained control of America.
The Money Masters - How International Bankers Gained Control of America
The misrepresentation and misapplication of the United States federal income tax constitutes the largest acquisition of wealth by way of deception in history.
Theft By Deception - Deciphering The Federal Income Tax
Joe Banister, former gun-carrying, IRS Criminal Investigation Division (CID) Special Agent exposes how the IRS is robbing you! He quits his $80,000/yr. Job because the IRS failed to show him that filing & paying Income Tax is mandatory. He will tell his story and his latest efforts for restoring honesty in government.
IRS Agent Exposes IRS Fraud!!
By Sherry Peel Jackson, Certified Fraud Examiner and Ex-IRS agent. She Challenges all citizens to demand answers from congress about the legality of Federal Income taxes and the Federal Reserve. This is a 2 hour lecture about some of the inner secrets of the IRS, and the fundamental lack of juridical framework that supports it.
Sherry Peel Jackson - Breaking The Invisible Shackles Of The IRS
Determined to find the law that requires American citizens to pay income tax, producer Aaron Russo ("The Rose," "Trading Places") set out on a journey to find the evidence.
America Freedom to Fascism
Barely seen video. Originally aired during the time of the raid on Irwin Schiff's Freedom Books, and just before the trial started. It was shown on a cable station hosted by Rolando, of the Las Vegas Tribune, but never before on the internet. Feel free to download it and make cds. Cindy wanted her message to get out there so lets help her do it. She's sacrificed everything by standing on the truth. This video might contain too much truth for those that make unlawful determinations regarding the peoples unalienable rights.
IRS Show Me The Law -Cindy Neun on Face the Tribune From Las Vegas (Rare Video)
There are quite a few other films online that may interest you. Click the google video link at the top of this thread and do your own search.
Enjoy!
Ones I recommend are as follow:
Tom Cryer, the Shreveport Lawyer who has taken on the IRS, who explains why most Americans are not liable for the income tax.
FEDERAL INCOME TAX Part 1
FEDERAL INCOME TAX Part 2
FEDERAL INCOME TAX Part 3
FEDERAL INCOME TAX Part 4
An historical documentary explains how international bankers gained control of America.
The Money Masters - How International Bankers Gained Control of America
The misrepresentation and misapplication of the United States federal income tax constitutes the largest acquisition of wealth by way of deception in history.
Theft By Deception - Deciphering The Federal Income Tax
Joe Banister, former gun-carrying, IRS Criminal Investigation Division (CID) Special Agent exposes how the IRS is robbing you! He quits his $80,000/yr. Job because the IRS failed to show him that filing & paying Income Tax is mandatory. He will tell his story and his latest efforts for restoring honesty in government.
IRS Agent Exposes IRS Fraud!!
By Sherry Peel Jackson, Certified Fraud Examiner and Ex-IRS agent. She Challenges all citizens to demand answers from congress about the legality of Federal Income taxes and the Federal Reserve. This is a 2 hour lecture about some of the inner secrets of the IRS, and the fundamental lack of juridical framework that supports it.
Sherry Peel Jackson - Breaking The Invisible Shackles Of The IRS
Determined to find the law that requires American citizens to pay income tax, producer Aaron Russo ("The Rose," "Trading Places") set out on a journey to find the evidence.
America Freedom to Fascism
Barely seen video. Originally aired during the time of the raid on Irwin Schiff's Freedom Books, and just before the trial started. It was shown on a cable station hosted by Rolando, of the Las Vegas Tribune, but never before on the internet. Feel free to download it and make cds. Cindy wanted her message to get out there so lets help her do it. She's sacrificed everything by standing on the truth. This video might contain too much truth for those that make unlawful determinations regarding the peoples unalienable rights.
IRS Show Me The Law -Cindy Neun on Face the Tribune From Las Vegas (Rare Video)
There are quite a few other films online that may interest you. Click the google video link at the top of this thread and do your own search.
Enjoy!
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WRONG...He STILL has to pay. He just isn't going to jail for it. But he has to pay...WITH penalties and interest.
Either you guys are ignorant of this case or you are bluffing hoping that others are ignorant of the case, but this does NOT mean that he gets to keep all the taxes that he was supposed to pay, nor does it set ANY precedent. He was found not guilty, like so many others (including Wesley Snipes) because in tax cases, the prosecution has a higher burden of proof to show that the defendant willingly withheld taxes even though he/she KNEW it was wrong.
The income tax law is on the books. It exists. It WAS ratified. No court is going to rule against it. And if by some miracle Ron Paul was elected president, it would STILL exist. The President does not have the power to get rid of it. Nor would he have the support of the rest of hte government, or even of the public.
Either you guys are ignorant of this case or you are bluffing hoping that others are ignorant of the case, but this does NOT mean that he gets to keep all the taxes that he was supposed to pay, nor does it set ANY precedent. He was found not guilty, like so many others (including Wesley Snipes) because in tax cases, the prosecution has a higher burden of proof to show that the defendant willingly withheld taxes even though he/she KNEW it was wrong.
The income tax law is on the books. It exists. It WAS ratified. No court is going to rule against it. And if by some miracle Ron Paul was elected president, it would STILL exist. The President does not have the power to get rid of it. Nor would he have the support of the rest of hte government, or even of the public.
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ionlyknowy
Member
- Joined
- Oct 21, 2007
- Messages
- 998
Hehe, you guys are funny.
The charges against this guy were criminal charges. You have a right to a jury in a criminal proceeding, and when you are acquitted from the charges by jury, then you cannot be tried again. It's called double jeopardy.
The whole deal is that the criminal law says that you must "Willfully not file a return"
And tax protesters get off on criminal charges sometimes because they are able to prove that they relied on the information provided by the tax movement therefore their not filing an income tax return was not "Willful" which under the Model Penal Code equates to "Knowledge" of the conduct, attendant circumstances, and result.
BUT, like W. Snipes, this guy was acquitted of criminal charges but still owes the money to the IRS. You think that you might be able to hide your money in a trust or a tenancy by the entirety. But you would be wrong.. The IRS can access your money where other creditors cannot.
A jury acquittal in a criminal proceeding, is never precedent because it can never be appealed. Only appellate or Supreme Court decisions are precedent.
Another poster mentioned Contract law. Many people think that you must sign a piece of paper to make a contract. But in reality, the only things that you HAVE to have a written contract for are the situations mapped out in the "Statute of Frauds". You can enforce an oral contract in court if it is not included in the statute of frauds.
Which includes:
* Contracts in consideration of marriage.
* Contracts which cannot be performed within one year.
* Contracts for the transfer of an interest in land.
* Contracts by the executor of a will to pay a debt of the estate with their own money.
* Contracts for the sale of goods above a certain value.
* Contracts in which one party becomes a surety (acts as guarantor) for another party's debt or other obligation.
It's really funny how everyone tries to be a lawyer, but when confronted with information from people in law school such as myself and "Mr. White" we are mostly dismissed.
We study this stuff every day. We know what we are talking about. Believe me, we know, we eat,sleep,breathe, touch, smell, and piss it...
The charges against this guy were criminal charges. You have a right to a jury in a criminal proceeding, and when you are acquitted from the charges by jury, then you cannot be tried again. It's called double jeopardy.
The whole deal is that the criminal law says that you must "Willfully not file a return"
And tax protesters get off on criminal charges sometimes because they are able to prove that they relied on the information provided by the tax movement therefore their not filing an income tax return was not "Willful" which under the Model Penal Code equates to "Knowledge" of the conduct, attendant circumstances, and result.
BUT, like W. Snipes, this guy was acquitted of criminal charges but still owes the money to the IRS. You think that you might be able to hide your money in a trust or a tenancy by the entirety. But you would be wrong.. The IRS can access your money where other creditors cannot.
A jury acquittal in a criminal proceeding, is never precedent because it can never be appealed. Only appellate or Supreme Court decisions are precedent.
Another poster mentioned Contract law. Many people think that you must sign a piece of paper to make a contract. But in reality, the only things that you HAVE to have a written contract for are the situations mapped out in the "Statute of Frauds". You can enforce an oral contract in court if it is not included in the statute of frauds.
Which includes:
* Contracts in consideration of marriage.
* Contracts which cannot be performed within one year.
* Contracts for the transfer of an interest in land.
* Contracts by the executor of a will to pay a debt of the estate with their own money.
* Contracts for the sale of goods above a certain value.
* Contracts in which one party becomes a surety (acts as guarantor) for another party's debt or other obligation.
It's really funny how everyone tries to be a lawyer, but when confronted with information from people in law school such as myself and "Mr. White" we are mostly dismissed.
We study this stuff every day. We know what we are talking about. Believe me, we know, we eat,sleep,breathe, touch, smell, and piss it...
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And it burns like hell when you piss it, I won't claim to be a lawyer though.
ionlyknowy
Member
- Joined
- Oct 21, 2007
- Messages
- 998
Well not lawyers, but in law school.
ionlyknowy
Member
- Joined
- Oct 21, 2007
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- 998
scandinaviany3
Member
- Joined
- Dec 2, 2007
- Messages
- 1,976
loved reading the filing...maybe we should sue the irs for fraud!
http://www.gcstation.net/liefreezone/THEMEMORANDUM.pdf
wouldnt it be fun as a movement to sue the irs for fraud and get major visibility!
http://www.gcstation.net/liefreezone/THEMEMORANDUM.pdf
wouldnt it be fun as a movement to sue the irs for fraud and get major visibility!
ionlyknowy
Member
- Joined
- Oct 21, 2007
- Messages
- 998
Let me just go ahead and post the law so that this gets moved to the smokey back room...
The law that requires you to pay income tax.
http://www.law.cornell.edu/uscode/uscode26/usc_sec_26_00000001----000-.html
TITLE 26 > Subtitle A > CHAPTER 1 > Subchapter A > PART I > § 1
Prev | Next
§ 1. Tax imposed
How Current is This?
(a) Married individuals filing joint returns and surviving spouses
There is hereby imposed on the taxable income of—
(1) every married individual (as defined in section 7703) who makes a single return jointly with his spouse under section 6013, and
(2) every surviving spouse (as defined in section 2 (a)),
a tax determined in accordance with the following table:
If taxable income is: The tax is:
Not over $36,900 15% of taxable income.
Over $36,900 but not over $89,150 $5,535, plus 28% of the excess over $36,900.
Over $89,150 but not over $140,000 $20,165, plus 31% of the excess over $89,150.
Over $140,000 but not over $250,000 $35,928.50, plus 36% of the excess over $140,000.
Over $250,000 $75,528.50, plus 39.6% of the excess over $250,000.
(b) Heads of households
There is hereby imposed on the taxable income of every head of a household (as defined in section 2 (b)) a tax determined in accordance with the following table:
If taxable income is: The tax is:
Not over $29,600 15% of taxable income.
Over $29,600 but not over $76,400 $4,440, plus 28% of the excess over $29,600.
Over $76,400 but not over $127,500 $17,544, plus 31% of the excess over $76,400.
Over $127,500 but not over $250,000 $33,385, plus 36% of the excess over $127,500.
Over $250,000 $77,485, plus 39.6% of the excess over $250,000.
(c) Unmarried individuals (other than surviving spouses and heads of households)
There is hereby imposed on the taxable income of every individual (other than a surviving spouse as defined in section 2 (a) or the head of a household as defined in section 2 (b)) who is not a married individual (as defined in section 7703) a tax determined in accordance with the following table:
If taxable income is: The tax is:
Not over $22,100 15% of taxable income.
Over $22,100 but not over $53,500 $3,315, plus 28% of the excess over $22,100.
Over $53,500 but not over $115,000 $12,107, plus 31% of the excess over $53,500.
Over $115,000 but not over $250,000 $31,172, plus 36% of the excess over $115,000.
Over $250,000 $79,772, plus 39.6% of the excess over $250,000.
(d) Married individuals filing separate returns
There is hereby imposed on the taxable income of every married individual (as defined in section 7703) who does not make a single return jointly with his spouse under section 6013, a tax determined in accordance with the following table:
If taxable income is: The tax is:
Not over $18,450 15% of taxable income.
Over $18,450 but not over $44,575 $2,767.50, plus 28% of the excess over $18,450.
Over $44,575 but not over $70,000 $10,082.50, plus 31% of the excess over $44,575.
Over $70,000 but not over $125,000 $17,964.25, plus 36% of the excess over $70,000.
Over $125,000 $37,764.25, plus 39.6% of the excess over $125,000.
The law that requires you to pay income tax.
http://www.law.cornell.edu/uscode/uscode26/usc_sec_26_00000001----000-.html
TITLE 26 > Subtitle A > CHAPTER 1 > Subchapter A > PART I > § 1
Prev | Next
§ 1. Tax imposed
How Current is This?
(a) Married individuals filing joint returns and surviving spouses
There is hereby imposed on the taxable income of—
(1) every married individual (as defined in section 7703) who makes a single return jointly with his spouse under section 6013, and
(2) every surviving spouse (as defined in section 2 (a)),
a tax determined in accordance with the following table:
If taxable income is: The tax is:
Not over $36,900 15% of taxable income.
Over $36,900 but not over $89,150 $5,535, plus 28% of the excess over $36,900.
Over $89,150 but not over $140,000 $20,165, plus 31% of the excess over $89,150.
Over $140,000 but not over $250,000 $35,928.50, plus 36% of the excess over $140,000.
Over $250,000 $75,528.50, plus 39.6% of the excess over $250,000.
(b) Heads of households
There is hereby imposed on the taxable income of every head of a household (as defined in section 2 (b)) a tax determined in accordance with the following table:
If taxable income is: The tax is:
Not over $29,600 15% of taxable income.
Over $29,600 but not over $76,400 $4,440, plus 28% of the excess over $29,600.
Over $76,400 but not over $127,500 $17,544, plus 31% of the excess over $76,400.
Over $127,500 but not over $250,000 $33,385, plus 36% of the excess over $127,500.
Over $250,000 $77,485, plus 39.6% of the excess over $250,000.
(c) Unmarried individuals (other than surviving spouses and heads of households)
There is hereby imposed on the taxable income of every individual (other than a surviving spouse as defined in section 2 (a) or the head of a household as defined in section 2 (b)) who is not a married individual (as defined in section 7703) a tax determined in accordance with the following table:
If taxable income is: The tax is:
Not over $22,100 15% of taxable income.
Over $22,100 but not over $53,500 $3,315, plus 28% of the excess over $22,100.
Over $53,500 but not over $115,000 $12,107, plus 31% of the excess over $53,500.
Over $115,000 but not over $250,000 $31,172, plus 36% of the excess over $115,000.
Over $250,000 $79,772, plus 39.6% of the excess over $250,000.
(d) Married individuals filing separate returns
There is hereby imposed on the taxable income of every married individual (as defined in section 7703) who does not make a single return jointly with his spouse under section 6013, a tax determined in accordance with the following table:
If taxable income is: The tax is:
Not over $18,450 15% of taxable income.
Over $18,450 but not over $44,575 $2,767.50, plus 28% of the excess over $18,450.
Over $44,575 but not over $70,000 $10,082.50, plus 31% of the excess over $44,575.
Over $70,000 but not over $125,000 $17,964.25, plus 36% of the excess over $70,000.
Over $125,000 $37,764.25, plus 39.6% of the excess over $125,000.
torchbearer
Lizard King
- Joined
- May 26, 2007
- Messages
- 38,926
that's what i stated earlier.
I barter my precious time/labor for money. That is not income. that is an even exchange.
I make money on the stock market, or interest on my account that is income.
Seriously...this thread needs to either be deleted, of the subject line changed. It is 100% false. the court did NOT find that he is not required to file returns or pay income tax. That is blatantly a lie. The court found him not guilty of CRIMINAL charges. The man is NOt free and clear of his financial burdens now.
Continuing to have this thread so prominent makes the site, and everyone who posted in ignorance about how this is a victory look bad.
Continuing to have this thread so prominent makes the site, and everyone who posted in ignorance about how this is a victory look bad.
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