Court Affirms Conviction, Rejecting Lesser Included Offense Instruction Request (7/17/19; 7/18/19)

In United States v. Rankin, 929 F.3d 399 (6th Cir. 2019), CA6 here, and GS here, Rankin was charged with (i) seven counts of failure to collect, account for and pay over payroll withholding tax in violation of  7202, (ii) six counts of tax perjury , § 7206(1), for individual tax returns, (iii) three counts of tax perjury, § 7206(1), for corporate returns, and (iv) one count of tax obstruction, § 7212(a). After trial, he was convicted on all counts and sentenced to 60 months (5 years).

On appeal, Rankin raised a number of issues and prevailed on only one relating to the timing of restitution.  I think only one issue is particularly interesting -- the lesser included offense issue.

Defendants facing felony count charges will often want a lesser included offense instruction to give the jury an alternative to conviction on the more serious offense charged.  Rankin was charged with seven counts of § 7202, a felony 5-year charged.  Rankin asked to a lesser included offense instruction for § 7203, failure to pay, which is a 1-year misdemeanor.  The district court denied the instruction.  The Court of Appeals affirmed the denial of the instruction.

The Court starts off with the guiding law (slip op., at 8, cleaned up; 929 F.3d at 406):

If a defendant asks for a lesser included offense instruction to which he is entitled, it is generally reversible error not to give it. A defendant is entitled to an instruction on a lesser-included offense if: (1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3) the evidence would support a conviction on the lesser offense; and (4) the proof on the element or elements differentiating the two crimes is sufficiently disputed so that a jury could consistently acquit on the greater offense and convict on the lesser.

Section 7202 (cleaned up) makes it a felony for "any person required . . . to collect, account for, and pay over any tax imposed" to "willfully fail to collect or truthfully account for and pay over such tax."

Section 7203 (cleaned up) makes it a misdemeanor for "any person required . . . to pay any estimated tax or tax, or required . . . to make a return, keep any records, or supply any information," to "willfully fail to [do so] at the time or times required by law or regulations."

Here, the Court rejected Rankin's claim that he was entitled to a § 7203 lesser included offense instruction (slip op., at pp 8-9; 929 F.3d at 406-407). The gist of the reasoning is:  While it is true that a failure to pay over withheld payroll taxes would be a crime described in both § 7202 and § 7203, § 7202, the felony did not have an extra element that would permit a jury to convict for § 7203, the misdemeanor, but acquit for § 7202, the felony.

The Court does paint in (too) broad strokes in getting there.  The Court said (929 F.3d at 407):  "all violations of § 7203 for failing to pay a tax necessarily constitute violations of § 7202."  (929 F.3d at 407) That statement is only true in the context of taxes that a person is required to collect, account for and pay over (like payroll withholding tax). My experience is that § 7203 failure to pay cases can be applied in contexts well outside withholding taxes.

JAT Comments:

Can Tax Evasion Be a Misdemeanor? (5/21/13)

I suppose this blog should begin with "Not to put too fine a point on it."  See Grammaphobia blog here.  The object of this blog is Judge Proctor's decision in United States v. Lyerly, 2013 U.S. Dist. LEXIS 67588 (ND AL 5/13/13), here [link to be added later].  The question is whether there is a material difference between tax evasion in Section 7201, here, a felony, and failure to pay criminalized by Section 7203, here, a misdemeanor, beyond just the punishments that make one a felony and one a misdemeanor and the different elements of the two crimes.  Most tax lawyers would be careful to describe Section 7201 as "tax evasion," a term of art limited to Section 7201.  So, is failure to pay in Section 7203, tax evasion albeit of the misdemeanor variety.  So here is Judge Proctors' discussion of the parameters of the terms here:

Defendant has moved the court to amend its previous Order and Memorandum Opinion with regard to three sections. First, Defendant objects to the use of the terms "tax evasion" and "failing to pay" in the first sentence of the second paragraph of the Memorandum Opinion (Doc. #49 at 1). (Doc. #55 at 1).  * * * 

1. Use of the Terms "Tax Evasion" and "Failing to Pay" 

The relevant sentence in the court's previous Memorandum Opinion which Defendant questions states, in full, that: 

Defendant has been charged with three counts of misdemeanor tax evasion under 26 U.S.C. § 7203 for failing to pay his personal income taxes in 2006, 2007, and 2008.
(Doc. #49 at 1) (filed under seal). Defendant objects to the use of the terms "tax evasion" and "failing to pay," both on the ground that they misrepresent the Information. The arguments related to each of these terms are slightly different, so the court will address each term separately. 

First, Defendant argues that use of the term "tax evasion" is inappropriate because Defendant was not charged with felony "tax evasion" under § 7201, but with a misdemeanor violation of § 7203. (Doc. #55 at 1-2). This is a strawman argument. The court did not say that Defendant is charged with felony tax evasion under § 7201, but that he is "charged with three counts of misdemeanor tax evasion under 26 U.S.C. § 7203." (Doc. #49 at 1). The court is well aware that a § 7201 violation is a felony and a § 7203 violation is a misdemeanor. Courts have long distinguished the two by referring to the former as "felony tax evasion" and the latter as "misdemeanor tax evasion." n1 The term "misdemeanor tax evasion" is, of course, a shorthand for "willful failure to file return, supply information, or pay tax in violation of 26 U.S.C. § 7203." To help ensure that a reader might not accidentally read "misdemeanor tax evasion" to mean "felony tax evasion," the court specifically indicated that Defendant was charged with three violations of 26 U.S.C. § 7203. (Doc. #49 at 1).
   n1 See e.g. United States v. Winfield, 960 F.2d 970, 972 (11th Cir. 1992); United States v. Brown, 548 F.2d 1194, 1199 (5th Cir. 1977); United States v. Schafer, 580 F.2d 774, 781 (5th Cir. 1978); United States v. Thompson, 518 F.3d 832, 866 n.18 (10th Cir. 2008).

Prominent Lawyer Pleads to Mainstream Tax Crimes (8/5/11)

I have spent a disproportionate number of blogs on the foreign account / asset issue (principally the offshore voluntary disclosure initiatives). But mainstream criminal tax issues proceed apace. I do not normally pay much attention to general failures to file, tax or pay evasion, tax perjury, Klein defraud conspiracies, except in those cases where there is something unusual.

So, today, I bring something that is mainstream but unusual. A lawyer has pled guilty to two counts of failure to file income tax returns and two counts of failure to pay income tax. The USAO SDNY press release is here.  The maximum sentence when these 1 year counts are stacked is 4 years. (The Sentencing Guidelines range will sure indicate a fulsome sentence.) The lawyer is not just any lawyer -- he was a partner during most of the years that he failed to file tax returns with a very prominent law firm, Sullivan & Cromwell LLP (website here). He is John J. O'Brien, formerly a partner specializing in mergers and acquisitions at Sullivan & Cromwell LLP. 

The guts of the press release (cut and paste) is :

Lawyer Pleads Guilty to Two Misdemeanor Counts of Failure to Pay

Various sources report that so-called celebrity lawyer, Mickey Sherman, has pled to two misdemeanor counts of failing to pay $400,000 in tax. (See the Tax Prof Blog for 7/5/10 here (with further links).) The counts to which he pled are under Section 7203 which provides in material part (words omitted for readability):

Any person required under this title to pay any tax who willfully fails to pay such tax shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than $25,000 ($100,000 in the case of a corporation), or imprisoned not more than 1 year, or both, together with the costs of prosecution.

There is but a thin line, if any, between Section 7203 (willful failure to pay) and Section 7201 (tax evasion, in this context called evasion of payment). Any practitioner or law student can recite the differing elements, but in a case such as Sherman's, they appear esoteric. (Maybe Sherman intended to just fail to pay but not to evade?) He apparently did file returns for those years (otherwise, presumably, the charge would have been failure to file), but the reports do not state whether he reported the income and just did not pay which might indeed justify a willful failure to pay plea.

Of course, getting a misdemeanor plea sure beats a felony plea, particularly because Sherman wants to continue to practice law without interruption by disbarment or temporary suspension. And, of course, copping a misdemeanor plea does often cap the sentence under the Sentencing Guidelines which are now advisory. In this particular case, however, I am not sure they produce a cap on the Guidelines Sentencing range. My quick and dirty calculation of the Guidelines range with $400,000 tax loss and acceptance of responsibility shows an indicated sentencing range of 18-24 months. (A tax loss just over $400,000 would have produced a sentencing range of 24-30 months.) Assuming the $400,000 tax loss is correct (and won't be increased during the PSR process), then the sentence under the Guidelines is not affected by whether the plea is to the two misdemeanor counts or to two felony counts or even one felony evasion count. That is to say that the Guidelines do not differentiate between misdemeanor and felony counts, except that, for example, two misdemeanor counts cap the sentence at 2 years whereas two felony counts of evasion would cap the sentence at 10 years (well above the Guidelines range). Thus, for example, if the tax loss had been $10,000,000, negotiating the plea of two misdemeanor counts rather than two evasion counts would achieve a real and major benefit under the Guidelines. But here, with a tax loss of $400,000, the indicated range is the same and within the maximum permitted by the counts of conviction whether the plea is to a misdemeanor or a felony.

Of course, the Guidelines are now just advisory. But, in any event, the maximum period of incarceration is still capped by the two misdemeanor counts of conviction. He is likely to get even less than the range. But it is hard to imagine that he will get probation.

As to why DOJ Tax accepted a misdemeanor rather than a felony plea, perhaps that is what the evidence demanded. On the other hand, perhaps DOJ Tax acted from compassion for this defendant to give him a shot at continuing to practice without interruption.

Golf Pro Pleads Guilty to Tax Crime

A plea announcement published in this morning’s Tax Notes Today (2009 TNT 182-26) grabbed my attention. On September 22, 2009, the U.S. Attorney for the Middle District of Florida announced a plea agreement with a professional golfer, one Jimmie L. Thorpe. The announcement has not yet been posted to the press release page of the U.S. Attorney’s web site. The press release page for September is here and presumably the posting will appear today or, at least, soon.

I am not a big golf fan, so don't know who he is and where or even if he ranks in the pantheon of golfers. His celebrity status, if any aside, the plea agreement is interesting on several points of interest to the criminal tax afficionado.

First, the plea is for two counts of failure to pay under § 7203. Failure to pay is a misdemeanor (i.e., maximum sentence of one year per count). On the facts stated in the announcement, it would appear that failure to pay and/or perhaps failure to file (also criminalized under § 7203) were the crimes in play. The plea is only to failure to pay. The facts contained in the announcement establish that three years were in play. I surmise the compromise to reach agreement was that only two years / counts would be admitted, hence capping the possible punishment to 2 years incarceration. This capping of the possible sentence was likely important to the defendant because, in his case, the tax loss numbers and other sentencing considerations could easily produce a sentence greatly in excess of 2 years. I have previously published an article addressing the use of counts to cap a sentence that could otherwise go much higher. John A. Townsend, Analysis of the Fastow Plea Agreements, 2004 TNT 44-46.

Second, a subtext in some of these cases is tax evasion through failure to file and/or failure to pay (as well as at least one other affirmative act). The Government will sometimes try to make a tax evasion case where the failure to file or failure to pay is a prominent element in the attempt to evade tax. But such cases are often more difficult for the Government to make, and the Government can fall back on the more easily proved case of failure to file or failure to pay. By charging the “lesser crime,” the Government can more easily extract a guilty plea in such cases, thus satisfying its imperative to get the maximum number of convictions and prominent publicity. Thus, had the Government pursued tax evasion (a 5 year incarceration period per count), it may have had difficult incentivizing Mr. Thorpe to plead where he faced the realistic possibility of more than 2 years incarceration.

Third, the announcement indicates that the defendant may be subject to a fine of up to $4,125,152.52. The basis for the fine is not stated in the plea agreement but can be easily derived. My students will remember that the Code provisions state a maximum fine. Section 7203 states a maximum fine of $25,000 for an individual, so that with two counts the Code maximum fine would be $50,000, far short of the fine agreed to in this case. My students will also remember, however, that the real fine provision is § 3571 which permits a maximum fine for a class A misdemeanor of $100,000 for individuals or, if greater, double the pecuniary gain to the defendant or the pecuniary loss to the victim. According to the announcement, the fine amount is just double (rounded) the stipulated tax loss amount of $2,062,576.27. So, this facially explains the large amount of the potential fine. In my experience fines do not play a significant role in tax cases because the taxpayer will often have paid the tax, penalties and interest before or during the prosecution phase or will agree to contractual restitution.

Finally, the announcement implies that defendant was a repeat offender . He had previously been investigated by IRS CI for the years 1993 and 1994. The announcement notes that he had asserted a reliance on accountants defense, although the announcement does not say that this defense is why he was not prosecuted for those years. (OK, the implication is that this defense was a material part of the reason for nonprosecution, but announcement does not say that.) But, this guy was put on notice of his tax obligations and could not have reasonably expected that type of defense to fly twice, particularly given the repeated pattern for the years involved in this prosecution.

Errata: The above discussion has been amended as of 5:20pm 9/23/05 to correct a misstatement about the fine. Before revision, the statement was that the defendant had agreed to the large fine. He had not. The accouncement merely said that the fine could be up to the amount. Thanks to the readers for tolerating my hopefully infrequent errors.