Thursday, April 15, 2010

Adding "Without Prejudice" to Jurat on Form 1040 Did Not Make Tax Return Invalid

United States v. Davis, No. 08-20844 (5th Cir. Apr. 13, 2010) (DeMoss, Elrod, Haynes)

What's that? You want to read about a tax-related opinion on tax day? You're in luck! Plus, it addresses a novel issue. So break out your adding machines, green eyeshades, and sharpened No. 2 pencils and dig in.

Davis, a Houston-area car-dealer/tax-prep/skydiving magnate, prepared tax returns for Oden, one of his employees. Several of those Form 1040s were fraudulent. Oden was charged with filing false federal tax returns (26 U.S.C. § 7206(1)), and Davis was charged with aiding & abetting Oden (26 U.S.C. § 7206(2)). At trial and on appeal, Davis argued that "because Oden added the phrase 'without prejudice' near his signature on the jurats, the Forms 1040 were invalid and therefore could not qualify as tax returns. According to Davis, the government thus failed to prove an essential element of a violation of § 7206(2), namely the filing of a federal tax return."

By the way, just to make sure we're all on the same page, what's a "jurat?"
A federal income tax return, Form 1040, “shall contain or be verified by a written declaration that it is made under penalties of perjury.” 26 U.S.C. § 6065. Form 1040 contains a jurat that states, in part, “[U]nder the penalties of perjury, I declare that I [the taxpayer] have examined this return and accompanying schedules and statements, and to the best of my knowledge and belief, they are true, correct, and complete.” A taxpayer’s signature on a return with a jurat indicates that the taxpayer attests to the accuracy of the reported data.

And here's where the court breaks new ground.

In cases involving the filing of frivolous tax returns, courts have held that tax returns are not valid where a taxpayer has deleted portions of the jurat. Courts have also held tax returns to be invalid where a taxpayer fails to sign the jurat.

This case presents us with a somewhat different question: whether Oden’s addition of language on the tax return altered the jurat in such a way so as to invalidate the return. Other courts that have addressed this question have examined whether the additional language amends the meaning of the jurat or merely reflects the taxpayer’s exercise of free speech. . . .

We now turn to the language at issue in this case. Oden testified at trial that he did not know what the phrase “without prejudice” meant. He testified further that Davis told him that it was “good practice” to include the phrase, but he had no explanation as to why this was so. As the government notes in its brief, the phrase is ambiguous and does not, on its face, disclaim Oden’s status as a taxpayer, call the accuracy of the data into question, or make “a mockery” of the return. Such a statement is more akin to a general statement of protest.

In cases such as this, where there is some ambiguity as to language’s effect on the jurat, we agree with the Seventh Circuit that the IRS “should be entitled to construe alterations of the jurat against the taxpayer, at least when there is any doubt.” “We refuse to require [the IRS] to engage in guessing games to determine what disclaimers like this one mean. To require such would drastically hinder the [IRS’s] ability to process returns effectively and efficiently.” Here, the IRS did not reject Oden’s Forms 1040 based on the additional language. We therefore hold that the Forms 1040 were valid, though fraudulent, tax returns.

(internal cites omitted).


Wednesday, April 14, 2010

Fives Reaffirm Limits On Collaterally Attacking Prior Convictions

United States v. Longstreet, No. 09-60051 (5th Cir. Apr. 7, 2010) (Garwood, Smith, Clement)

As you're well aware, the number and nature of prior convictions can have a large effect on a defendant's sentencing exposure, due to a variety of statutory and Guidelines enhancements. Anything you can do to challenge the validity of such priors? Very little, as the court reminds us in Longstreet:

Application note 6 to U.S.S.G. § 4A1.2 states that “this guideline and commentary do not confer upon the defendant any right to attack collaterally a prior conviction or sentence beyond any rights otherwise recognized in law.” . . . Furthermore, in Custis [v. United States], the Court held that the Constitution requires collateral review of a defendant’s prior conviction used to enhance a federal sentence only when the defendant alleges that the conviction was obtained in violation of her Sixth Amendment right to counsel. [cites].

In a number of unpublished decisions following Custis, this court has refused to entertain collateral attacks on prior state convictions made during federal sentencing proceedings when, as here, the defendant does not allege that the prior conviction was uncounseled. [cites]. Our sister circuits have adopted the same rule.

We therefore hold that, absent an allegation that the defendant was denied counsel in the prior proceeding, a district court sentencing a defendant may not entertain a collateral attack on a prior conviction used to enhance the sentence unless such an attack is otherwise recognized by law.

(emphasis added). Note that the burden appears to be on the defendant to affirmatively allege—and perhaps prove—a denial of counsel, so arguments based on a lack of information regarding counsel in the record of the prior conviction may not fly.

What was the failed challenge in this case, you ask? Longstreet got a criminal history point for a conviction for contributing to the delinquency of a minor.
When Longstreet appeared for trial, the state court agreed to dismiss the charge upon Longstreet’s payment of seventy dollars in court costs. Longstreet failed to pay the costs, and, on this basis, the state court found her guilty. On appeal, Longstreet argues that there was never an “adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere,” by the state court, as required to constitute a “prior sentence” for criminal history purposes. See U.S.S.G. § 4A1.2(a)(1).

The court construed Longstreet's argument as a collateral attack on the validity of the conviciton (even though she hadn't framed it as such), and rejected it because Longstreet did not allege a violation of her right to counsel.

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