United States v. Russell ( 1993 )

July 20, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 91-2186
UNITED STATES,
Appellee,
v.
WILLIAM S. RUSSELL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Shane Devine, U.S. District Judge]
Before
Selya, Boudin and Stahl,
Circuit Judges.
William S. Russell on brief pro se.
Michael L. Paup, Acting Assistant Attorney General, Robert
E. Lindsay, Alan Hechtkopf and Karen M. Quesnel, Tax Division
Department of Justice, on brief for appellee.
Per Curiam. The appellant, William S. Russell, owned a
business in New Hampshire. He and his wife took no salary
from the business, but they used substantial amounts of money
from corporate accounts to pay their personal expenses,
failed to declare the payments as income, and failed to file
individual and corporate income tax returns. Russell pleaded
guilty to one count of conspiracy to defraud the United
States, 18 U.S.C. 371, and three counts of income tax
evasion, 26 U.S.C. 7201, and received a twenty-seven month
prison sentence.
Russell, who was represented by counsel before the
district court but appears pro se here, challenges neither
his plea nor his sentence, but argues that the indictment was
"false and fraudulent" because it charged him with evading
the income tax by, among other things, failing to file an
income tax return. According to Russell, the indictment is
therefore contradictory because without a return the Internal
Revenue Service cannot make a valid assessment, without a
valid assessment there can be no tax liability, and without
liability there can be no evasion.
This is incorrect. The crime of income tax evasion has
three elements: (1) willfulness, (2) existence of a tax
deficiency, and (3) an affirmative act constituting an
evasion or attempted evasion of the tax. Sansone v. United
States, 380 U.S. 343, 351 (1965). A tax deficiency "exists
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from the date a return is to be filed and . . . arises by
operation of law when the return is not filed." United
States v. Hogan, 861 F.2d 312, 315 (1st Cir. 1988). As long
as the tax is "due and owing" in this manner, no formal
assessment is necessary. Id.Russell's other arguments are equally without merit.
First, he was required by statute to make a return, 26 U.S.C.
6012, and pay the tax owed. 26 U.S.C. 6151. Second, the
requirement that he file a return did not violate the Self-
Incrimination Clause of the Fifth Amendment. See United
States v. Sullivan, 274 U.S. 259, 263-64 (1927). Finally,
the district court had subject-matter jurisdiction, 18 U.S.C.
3231, as well as "territorial" jurisdiction over the
prosecution. See United States v. Lussier, 929 F.2d 25, 27
(1st Cir. 1991) (per curiam).
Affirmed.
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