United States v. Gross
2010 U.S. App. LEXIS 23286
| 6th Cir. | 2010Background
- Gross was indicted Sept. 19, 2006 on four counts of attempting to evade or defeat tax for 2000–03, plus three counts of false tax returns and one count of fictitious financial instrument.
- The 2000 tax-year evasion count was dismissed; the other charges remained at trial, with focus on his attempts to evade via false W-4 forms and nonfiling for 2001–2003.
- From 1997–1999 Gross worked as an electrician; Highgate withheld taxes, but in 2000 and 2001–2003 he claimed exempt via W-4s, reducing or eliminating withholding.
- Gross did not file federal income tax returns for 2001–2003; expert estimated total liability for those years at $39,305, based in part on Highgate’s W-2s.
- PSR set tax loss at $46,292 for the evasion offenses; combined with other offenses total tax loss was $144,355, yielding a Guidelines range of 21–27 months.
- District court denied objections and motions; Gross was sentenced to 21 months and appealed challenging his §7201 convictions and related issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether false W-4s satisfy §7201's affirmative act | Gross argues W-4s are not affirmatively evading. | Gross asserts W-4s cannot constitute evasion acts. | Affirmative act established; convictions affirmed. |
| Venue/jurisdiction adequacy for §7201 | Government maintains venue was proper and Gross waived objections. | Gross claims no proper venue exists due to district reorganization. | Venue objections waived; district court valid. |
| PRA defense to tax evasion liability | PRA defenses could negate filing obligations inconsistently with §7201. | PRA excuses cannot defeat §7201 evasion liability. | PRA does not defeat §7201 convictions. |
| Good-faith defense viability | Government asserts no error in allowing good-faith defense instruction. | Gross argues district court suppressed good-faith defense evidence. | Good-faith defense properly addressed; arguments rejected. |
| Sentencing reliance on tax-loss figures and Apprendi concerns | Tax loss informs base offense level; court may find facts at sentencing. | Sentence based on judge-found facts violates Apprendi/Rita. | Apprendi/Rita-not violated; sentence affirmed. |
Key Cases Cited
- Spies v. United States, 317 U.S. 492 (1943) (illustrates types of affirmative acts of evasion)
- United States v. Spine, 945 F.2d 143 (6th Cir. 1991) (affirmative acts include filing false W-4 forms)
- Patridge v. United States, 507 F.3d 1092 (7th Cir. 2007) (return requirement under §7203; form not strictly 1040 required)
- Wunder v. United States, 919 F.2d 34 (6th Cir. 1990) (PRA not a defense to filing obligations; 1040 forms exception)
- Hindenlang v. United States, 164 F.3d 1029 (6th Cir. 1999) (test for what constitutes a tax return)