United States v. Boisseau
2016 U.S. App. LEXIS 20535
| 10th Cir. | 2016Background
- Boisseau, a Wichita attorney, was convicted after a bench trial of tax evasion for unpaid taxes from 1998–2008 (26 U.S.C. § 7201).
- By 2008 he had reported approximately $712,972 in tax liability but paid about $212,511; he also faced a 2001 trust-fund recovery penalty of ~$250,929.
- The district court found three primary affirmative acts: placing his law practice in the name of a nominee owner, directing the firm to pay his personal expenses (instead of wages) after an IRS levy, and telling an IRS revenue officer he received no compensation when the firm was paying his expenses.
- The court relied on timing and testimony showing the nominee owner had no role, Boisseau continued to control operations, compensation was altered after levy threats, and statements to the IRS were misleading.
- The district court concluded these acts were willful (voluntary, intentional violation of a known legal duty) and sufficient to prove tax evasion; the Tenth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that Boisseau committed an affirmative act of evasion | Government: nominee ownership, altered compensation, and misstatements are affirmative acts of evasion | Boisseau: firm creation and compensation changes were legitimate business moves; statements were corrected and reported on returns | Affirmed: a rational factfinder could find each affirmative act beyond a reasonable doubt |
| Sufficiency of evidence of willfulness | Government: circumstantial evidence and affirmative acts show intent to evade | Boisseau: affirmative acts alone don’t prove willfulness; he lacked intent | Affirmed: willfulness proven by knowledge of tax duty and conduct (nominee, compensation changes, misstatements) |
| Whether an affirmative act must be designed to mislead or conceal (Meek issue) | Boisseau: Tenth Circuit precedent requires an act designed to mislead or conceal | Government: Supreme Court guidance in Kawashima permits §7201 convictions without fraud/misrepresentation in some circumstances | Court avoided resolving circuit split on precedent because the district court found Boisseau’s acts were inherently misleading; no reversal required |
| Whether proving an affirmative act alone satisfies willfulness (Romano issue) | Boisseau: the elements are distinct; proving one should not automatically prove the other | Government: district court separately addressed willfulness; issue unpreserved | Harmless: district court separately analyzed willfulness; any error did not affect outcome |
Key Cases Cited
- Spies v. United States, 317 U.S. 492 (examples of affirmative acts; lawful conduct can be actionable if intent to evade exists)
- Sansone v. United States, 380 U.S. 343 (elements of tax evasion: deficiency, affirmative act, willfulness)
- Cheek v. United States, 498 U.S. 192 (willfulness defined as voluntary, intentional violation of known legal duty)
- Kawashima v. Holder, 132 S. Ct. 1166 (noting §7201 convictions need not always involve fraud or misrepresentation)
- Meek v. United States, 998 F.2d 776 (10th Cir.) (stating affirmative act requires a positive act designed to mislead or conceal)
- Romano v. United States, 938 F.2d 1569 (2d Cir.) (discussion of the close connection between affirmative act and willfulness)
- Conley v. United States, 826 F.2d 551 (7th Cir.) (use of nominees to evade tax liability)
- Jungles v. United States, 903 F.2d 468 (7th Cir.) (lawful conduct can be affirmative act if tax-evasion intent present)