United States v. Hunerlach , 197 F.3d 1059 ( 1999 )

UNITED STATES of America, Plaintiff-Appellee,
v.
George R. HUNERLACH, Defendant-Appellant.
No. 98-4781.
United States Court of Appeals,
Eleventh Circuit.
Dec. 7, 1999.
Appeal from the United States District Court for the Southern District of Florida. (No. 97-8109-CR-KLR),
Kenneth L. Ryskamp, Judge.
Before ANDERSON, Chief Judge, MARCUS, Circuit Judge, and MILLS*, Senior District Judge.
RICHARD MILLS, Senior District Judge:
Hunerlach appeals from his convictions and sentence which he received for willful evasion of
payment of taxes (26 U.S.C. § 7201) and filing a false statement (26 U.S.C. § 7206(1)).
Mainly, he argues that his conviction for filing a false statement should be reversed because the
prosecution was commenced beyond the six-year statute of limitations and the district court erroneously
admitted evidence in violation of his constitutional rights. He also challenges his conviction for wilful
evasion of payment of taxes arguing that there was insufficient evidence to sustain the conviction.
He further argues that the district court erroneously included interest and penalties as "tax loss" in
calculating his sentence.
We affirm the convictions, but vacate and remand for re-sentencing.
I. FACTS
On September 7, 1988, Hunerlach pleaded guilty to one count of a three-count indictment charging
him with filing false tax returns for the years 1981 through 1983, a violation of 26 U.S.C. § 7206(1), and
entered into a plea agreement with the government. In the plea agreement, Hunerlach agreed to pay the
*
Honorable Richard Mills, Senior U.S. District Judge for the Central District of Illinois, sitting by
designation.
income tax liabilities arising from the false returns within a "reasonable time." He served a brief prison time
as a result of his conviction on that charge.1 Shortly after his release from prison, instead of paying the tax
obligations, Hunerlach transferred most of his money to accounts in Barclays Bank in the Bahamas, which,
by the time of trial in this case, contained over $200,000.00. Hunerlach also started to purchase, sell, and/or
mortgage various pieces of property, including real estate and private planes, through the use of nominee
corporations named DTS,2 Dagny,3 Henry Reardon Inc., and Dobill.4
Meanwhile, the government attempted to collect on Hunerlach's tax liability. On November 23, 1989,
Manual Junco, Hunerlach's Certified Public Accountant (CPA) and power of attorney, signed a Form 870
Waiver of Restrictions on assessment and Collection of Deficiency and agreed to the assessment and
collection of past due taxes in the amount of $306,020 for 1981 through 1983, penalties and additions to the
tax in the approximate amount of $228,623, and interest. Approximately a year later, Hunerlach and his wife
signed a notice-of-deficiency waiver, and agreed to the determination by the IRS of income tax deficiencies
and penalties for taxable years 1984, and 1986 through 1988 in the amount of $69,891, penalties and
additions to the tax in the approximate amount of $172, 519, and interest. However, Hunerlach never made
any voluntary payments on the confessed tax liabilities.
In 1993 and 1994, Hunerlach was involved in two real estate transactions in Hilton Head, South
Carolina. In 1993, Hunerlach, claiming to represent Dagny, contacted attorney Sydney Clark to purchase a
lot at the Bridgeport Shipyard Plantation. In 1994, Hunerlach contacted attorney Jack Biel concerning the
purchase of a unit at Oceanwalk Condos on South Forrest Beach. During the transaction, Biel dealt solely
with Hunerlach and no one else. On May 6, 1994, Hunerlach, signing as an agent of Dagny, agreed to
1
As of the date of the indictment in this case, Hunerlach's obligation remained unpaid.
2
Hunerlach represented DTS as a "Panama Corporation."
3
Dagny was a purported Bahamian corporation.
4
Dobill was a Delaware corporation.
2
purchase the Oceanwalk Condo for $65,000. As earnest money, Hunerlach provided a check written on a
personal bank account in the names of Hunerlach and his wife.
Paul Cale of Hilton Head Vacation rentals managed both of the properties. Hunerlach told Cale that
he was an agent for Dagny. He also told Cale to hold the collected rent in an escrow account until further
direction from Hunerlach. The properties produced approximately$10,000.00 to $13,000.00 in gross income.
Cale made some checks payable to Dagny but, at Hunerlach's instruction, sent the money to Hunerlach at his
home in Fort Pierce, Florida.
On May 19, 1994, Hunerlach met with IRS Revenue Officer Michael Stone pursuant to a summons
to discuss the collection of Hunerlach's tax liabilities. During the meeting, Stone asked questions that
appeared on IRS Form 433A (Collection Information Statement for Individuals), and Hunerlach responded
to the questions. Stone filled out the Form based on the answers given by Hunerlach, and at the end of the
meeting, Hunerlach signed the form.5 Hunerlach provided false information to Stone regarding his assets,
which Hunerlach later certified as true by signing the Form.
Several years later, in June of 1997, IRS special agents John Wilkinson and Dan Dockum met with
Hunerlach, at Hunerlach's request. At the beginning of the interview, Wilkinson informed Hunerlach that,
as a special agent, Wilkinson investigated the possibility of criminal violations, and that he wanted to ask a
few questions regarding Hunerlach's tax liabilities. Wilkinson then advised Hunerlach of his rights under the
Fifth Amendment. Hunerlach acknowledged that he understood his rights and proceeded to answer numerous
questions on a variety of topics. On several occasions during the taped interview, the agents asked Hunerlach
if he would sign a waiver that would permit Barclay Bank to release Hunerlach's foreign bank records, but
Hunerlach refused to sign such a waiver.
5
Form 433A contained a certification clause which states: "[u]nder penalties of perjury, I declare that to
the best of my knowledge, and belief this statement of assets, liabilities, and other information is true correct
and complete."
3
A grand jury returned a two-count indictment against Hunerlach on September 23, 1997. Count I
charged Hunerlach with willfully evading the payment of tax, a violation of 26 U.S.C. § 7201. Count II
charged him with willfully submitting false information on a statement, a violation of 26 U.S.C. § 7206.
Before trial, Hunerlach moved to dismiss Count I based on statute of limitations. That motion was
denied. During the course of the trial, the district court admitted, inter alia, evidence of Hunerlach's refusal
to sign a waiver to his Barclay Bank account, and the reasons that he gave for refusing to sign the waiver.
Moreover, the district court admitted, over Hunerlach's objection, testimony of a case agent which relayed
conversations with Osman and Higgs (alleged officers of Hunerlach's foreign corporations), which showed
they were not real directors of the corporation, but that they were mere nominee directors. At the end of the
prosecution's case, Hunerlach moved for judgment of acquittal based on sufficiency of the evidence. The
district court denied the motion. A jury convicted Hunerlach on both counts.
At sentencing, the district court found that the total "tax loss" was over $3,000,000.00, which
included the interest and penalties that accrued from 1981 to 1988. As such, the district court assigned a base
offense level of 21 pursuant to U.S.S.G. § 2T4.1 (1997). The district court enhanced the base offense level
by four levels, pursuant to § 2T1.1(b)(2) and § 3C1.1. Hunerlach's criminal history category was I, which
yielded a sentencing range of 57 to 71 months. However, due to the statutory sentence maximum of five
years and three years for Count I and Count II, respectively, the district court sentenced Hunerlach to a term
of 60 months imprisonment for Count I, and 36 months for Count II, to run concurrently.
II. ISSUES
Appellant raises the following issues on appeal:
1. Whether the district court erred in denying Hunerlach's motion to dismiss Count I based on the statute
of limitations;
2. Whether the district court erroneously admitted evidence in violation of Hunerlach's constitutional
rights;
3. Whether the district court erred in denying Hunerlach's motion for judgment of acquittal on Count
II of the indictment based on sufficiency of the evidence;
4
4. Whether the district court erred in including interest and penalties in calculating "tax loss" for the
purposes of determining Hunerlach's base offense level.
III. DISCUSSION
A. Statute of Limitations
Appellant argues that the district court should have dismissed Count I of the indictment because it
was barred by the statute of limitations. We review the district court's interpretation and application of statute
of limitations de novo. See United States v. Gilbert, 136 F.3d 1451, 1453 (11th Cir.1998) (citations omitted).
As noted before, Count I charged Appellant with a violation of 26 U.S.C. § 7201, which states in
relevant part, "[a]ny person who willfully attempts in any manner to evade or defeat any tax imposed ... or
the payment thereof shall, ... be guilty of a felony...." 26 U.S.C. § 7201. In cases of willful evasion of
payment, there is an additional element that the taxpayer engages in some affirmative act constituting an
evasion of payment of tax. See Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 13 L.Ed.2d 882(1965). In United States v. Winfield, 960 F.2d 970, 972 (11th Cir.1992), we considered in a 28 U.S.C. § 2255context whether the crime of willful tax evasion, 26 U.S.C. § 7201, includes acts of evasion that occurred
after the tax return was due for the purposes of calculating the statute of limitations period. In that case, we
applied the rule in United States v. Beacon Brass Co., 344 U.S. 43, 73 S.Ct. 77, 97 L.Ed. 61 (1952), and held
that they did. See id.Appellant does not appear to dispute that in evasion of assessment cases, the statute of limitation
begins to run from that last act of concealment. He does argue, however, that "extension of the limitations
period in evasion of payment cases to commence upon the last affirmative act of evasion of payment, operates
to eliminate the statute of limitations" because if the Appellant refuses to pay, as in this case, and he continues
to engage in any financial transactions rather than pay his taxes, he would be subject to continued
prosecution. We reject this argument.6
6
Initially, we note that since Appellant does not challenge the fact that he committed affirmative acts of
evasion within the six-year period prior to the date of indictment, the sole issue becomes when the six-year
period begins to run.
5
First, Appellant cites no authority, nor can the Court find such authority, that draws a distinction
between evasion of assessment and payment for the purposes of applying the statute of limitations. Second,
we find no reason to apply different limitations rules for evasion of assessment and payment of taxes. Both
crimes appear to be designed to punish the same underlying conduct—the evasion of tax. See United States
v. Masat, 896 F.2d 88, 91 (5th Cir.1990); see also United States v. Mal, 942 F.2d 682, 688 (9th Cir.1991)
("[e]vasion of payment and evasion of assessment are not distinctly different kinds of conduct.... We thus
conclude that § 7201 charges only the single crime of tax evasion, and that an individual violates the statute
either by evading the assessment or the payment of taxes.") Thus, at least for the purposes of applying the
statute of limitations, we hold that the statute of limitation for willful evasion of payment also begins to run
from the last affirmative act of evasion, even if the act occurs past six years from the date which the tax is
due. See, e.g., United States v. Ferris, 807 F.2d 269, 272 (1st Cir.1986) (holding that prosecution under §
7201 was not barred by the statute of limitations because affirmative act of evasion occurred within six years
prior to date of indictment); United States v. Trownsell, 367 F.2d 815, 816 (7th Cir.1966) (per curiam )
(holding that statute of limitation for evasion of payment did not run because the last affirmative act occurred
within six years prior to indictment.) In this case, the record shows, and Appellant does not contest, that he
committed several affirmative acts of evasion within the six years immediately preceding the indictment, one
of which was to hide rental income from the government by purchasing the rental property in the name of
Dagny. Accordingly, we affirm the district court's denial of Appellant's motion to dismiss Count I.
B. Evidentiary issues
Appellant next argues that the district court erred in admitting the recorded June 1997 interview with
IRS agents, which included his refusal to sign a waiver allowing Barclay Bank to release his financial records,
and his explanations as to why he was refusing to sign a waiver. Appellant argues that his refusals to sign
the waiver and his explanations as to refusal were protected under his Fifth amendment rights. Moreover,
he argues that the district court erred in allowing Agent Wilkinson to testify regarding statements made by
6
Osman and Higgs that they were nominee directors of Dagny and DTS, in violation of his Sixth Amendment
rights. Since Appellant is challenging the district court's evidentiary rulings, we review only for "clear abuse
of discretion." See United States v. Ross, 131 F.3d 970, 987 (11th Cir.1997).
1. Fifth Amendment
Appellant argues that his refusal to sign a waiver, and particularly his reasoning therefore, constituted
an invocation of his Fifth Amendment privilege.7 Thus, he contends that the district court erred in admitting
the tape of the interview, and permitting the prosecutor to refer to his refusal to sign the waiver during closing
arguments. In contrast, the government argues that Appellant's refusal to sign the waiver was not a
"testimonial communication," and thus, no privilege attached to that act. Moreover, the government argues
that since the portions of the tape and transcript at issue were not the result of any compulsion, the district
court did not err in admitting such evidence.
The Self-Incrimination Clause of the Fifth Amendment reads: "No person ... shall be compelled in
any criminal case to be a witness against himself." U.S. Const. amend. V. The Supreme Court has explained
that the privilege protects a person only against being incriminated by his own compelled testimonial
communications. See Doe v. United States, 487 U.S. 201, 207, 108 S.Ct. 2341, 2345, 101 L.Ed.2d 184 (1988)
(citations omitted.) To that extent, we must determine whether Appellant's refusal to sign a waiver, and the
reasons given therefore, was "compelled," and whether such refusal was a "testimonial communication."
First, our review of the record reveals that Appellant was not compelled to sign a waiver. Appellant
was not under a court order, or a subpoena, or any other compulsion to release his records.8 Thus, although
7
Interestingly, the record does not show that Appellant filed a pre-trial motion to suppress the statements
he made during the interview.
8
Generally, the privilege attaches either when a person is legally compelled to testify, e.g., subpoena or
a court order, or during a "custodial interrogation," where the compulsion comes from the custodial
environment. See, e.g., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); United
States v. Howard, 991 F.2d 195, 200 (5th Cir.1993) ("The defendant's Fifth Amendment right against
self-incrimination does not attach until custodial interrogation has begun.")
In this case, there is no question that Appellant was not subject to a subpoena or another
7
Appellant could have refused to sign, he could not refuse to sign based on the Fifth Amendment privilege.
Second, even if we assume that he was compelled to sign, the signing of a waiver authorizing the release of
foreign bank records is not necessarily a "testimonial communication" that is protected by the Fifth
Amendment privilege. See e.g., Doe, 487 U.S. at 217, 108 S.Ct. 2341. "In its testimonial significance, the
execution of such a directive is analogous to the production of a handwriting sample or voice exemplar[.]"
Id. Similarly, we hold that the refusal to sign a waiver has no testimonial significance because it does not
relate a factual assertion or disclose information. Therefore, we conclude that the refusal to sign the waiver
is not "testimonial communication" that is protected under the Fifth Amendment privilege. Accordingly, we
hold that the district court did not abuse its discretion by admitting the taped interview.
2. Confrontation Clause
Appellant next argues that the district court erred in admitting hearsay statements by Higgs and
Osman to prove that Dagny and DTS were not bona fide corporations in violation of the Confrontation Clause
of the Sixth Amendment. The government argues that the statements were not hearsay because they were
not offered for the truth of the matter asserted, and that even if they were hearsay, the error was harmless.
Federal Rules of Evidence defines hearsay as "a statement, other than the one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
Fed.R.Evid. 801(c). In this case, Agent Wilkinson testified that he spoke to Osman, and that in response to
court order to testify at the time of the taped interview. Moreover, it is also clear that Appellant was
not under "custody" when he was interviewed. The question of whether a person is in custody is
viewed from the perspective of a reasonable person in the position of the suspect. See United States
v. Adams, 1 F.3d 1566, 1575 (11th Cir.1993). In this case, the record shows that Appellant had
voluntarily requested the meeting, and that he was notified of, and had acknowledged understanding
of, his rights. As the Supreme Court has held, when a defendant's attendance at a meeting is
voluntary, the meeting is not a "custodial interrogation" for the purposes of triggering even the most
basic of the Fifth Amendment protection—the Miranda warnings. See e.g., Oregon v. Mathiason,
429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (defendant that came to police station voluntarily,
though at the request of police officer, was not subject to custodial interrogation to trigger Miranda.)
Under the facts of this case, a reasonable person in the Appellant's position would not believe that
he was under custody, or any type of compulsion. Nothing in the record shows that Appellant could
not have simply walked away from the interview.
8
a question as to what Osman did for a living, Osman told him that he was a "rat catcher." With respect to
Higgs' occupation, he told Wilkinson that he was an attorney and a "nominee director for one of the
corporations." The record reflects that the government offered these statements in order to prove that Dagny
and DTS were not bona fide corporations, and that the corporations were solely under the control of
Appellant. These statements appear to be hearsay for the simple reason that notwithstanding the truth of the
matter asserted, the statements would be irrelevant to any issue in the case. Therefore, we hold that the
district court abused its discretion by admitting the statements.
Even if the evidence were erroneously admitted, however, petitioner would not be entitled to prevail
on appeal if that error is harmless beyond a reasonable doubt. See generally Delaware v. Van Arsdall, 475
U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986) (no reversal of conviction if Confrontation
Clause violation harmless beyond a reasonable doubt).9 We conclude that the error was harmless in light of
the substantial evidence that Dagny and DTS were not bona fide corporations. There is substantial evidence
in the record that Appellant used Dagny and DTS to keep the IRS from "snatching" his assets. Although the
business transactions, e.g., real estate transactions, were conducted through Dagny and DTS, Appellant made
all the decisions without participation from other "officers" or "directors" of Dagny or DTS. This is evident
from testimony of various participants of the business transactions of Dagny and DTS. The witnesses testified
that they had dealt directly only with Appellant during the deal. In addition, there is evidence that Appellant
directly received rental income from properties owned by Dagny or DTS. Based on these pieces of evidence,
a jury could easily have found that Dagny and DTS were not bona fide corporations.
9
The Supreme Court has instructed that under the harmless error review, the correct inquiry is whether,
assuming that the damaging potential of the cross-examination were fully realized, we might nonetheless say
that the error was "harmless beyond a reasonable doubt." Factors that determine whether such an error is
harmless include: the importance of the witness' testimony in the prosecution's case, whether the testimony
was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the
witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall
strength of the prosecution's case. See id. at 684-85, 106 S.Ct. 1431.
9
Therefore, we hold that the admission of the hearsay statements were harmless,10 and affirm
Appellant's conviction under § 7201.
C. Sufficiency of the evidence issue
Appellant argues that the district court erred in denying his motion for judgment of acquittal as to §
7206(1) charge in Count II of the indictment. He asserts that the government failed to prove that he read and
understood Form 433A before he signed it. Moreover, for the first time on appeal, Appellant argues that
under our binding case law, Form 433A is not a "return" or "statement" that could serve as a basis for a
conviction under § 7206(1).11
We subject a sufficiency of evidence challenge, a question of law, to de novo review. See United
States v. Cannon, 41 F.3d 1462, 1465 (11th Cir.1995) (citing United States v. Kelly, 888 F.2d 732, 739 (11th
Cir.1989)). However, this court must view the evidence in the light most favorable to the Government. See
Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). Applying this standard
of review, we are obliged to uphold a verdict which is supported by substantial evidence. See Hamling v.
United States, 418 U.S. 87, 124, 94 S.Ct. 2887, 2911, 41 L.Ed.2d 590 (1974).
There is sufficient evidence in the record to support a finding beyond a reasonable doubt that
Appellant knew the contents of the form. The record shows that Agent Stone read the questions from Form
433A to Appellant, and that he recorded Appellant's answers onto the form. The questions on the form sought
to elicit answers regarding Appellant's assets. It is undisputed that Appellant did not disclose properties that
10
Moreover, we need not focus solely on Appellant's use of Dagny and DTS to avoid payment in order to
affirm his conviction under § 7201. Appellant's false statements to IRS agent Stone regarding his assets can
constitute an affirmative act of evasion which can sustain a conviction under § 7201. During oral arguments,
Appellant's counsel argued that such dual use of his statements to Agent Stone would implicate the Double
Jeopardy Clause. This argument lacks merit. The two crimes, §§ 7201 and 7206, require proof of different
elements. Section 7206 requires a person to willfully make and subscribe to a fraudulent tax return, while
§ 7201 criminalizes attempts in any manner to evade or defeat tax.
11
That section prohibits a person from "[w]illfully mak[ing] and subscrib[ing] any return, statement, or
other document, which contains or is verified by a written declaration that it is made under the penalties of
perjury, and which he does not believe to be true and correct as to every material matter...." 26 U.S.C. §
7206(1).
10
he owned. Moreover, it is undisputed that Appellant signed the form in the presence of Agent Stone, despite
the fact that the form contained false information. Based on these pieces of evidence, a jury could have easily
found beyond a reasonable doubt that Appellant knew that the contents of Form 433A were false, and that
he signed the form.12 Therefore, we reject Appellant's sufficiency argument.
Appellant's second argument merits some discussion. In essence, he argues that under our binding
precedent in United States v. Levy, 533 F.2d 969 (5th Cir.1976),13 Form 433A cannot serve as a basis for §
7206(1) conviction. Since the record does not show that Appellant raised this issue to the district court, our
review of the district court's decision to deny the motion for judgment of acquittal on that basis is only for
"plain error." See United States v. Olano, 507 U.S. 725, 731-32, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508(1993). "Our power to review for plain error is 'limited' and 'circumscribed.' " United States v. Humphrey,
164 F.3d 585, 588 (11th Cir.1999) (citation omitted). As the Supreme Court has directed, an error that was
not raised before the district court may be "noticed" only if it is "plain" and "affect[s] substantial rights."
Olano, 507 U.S. at 732, 113 S.Ct. 1770.
In Levy, Levy, a lawyer, was convicted for violating § 7201(1) by signing and delivering an allegedly
false Form 433-AB when approached by an IRS agent about taxes that Levy admittedly owed, but which he
claimed he was unable to pay. See Levy, 533 F.2d at 970. In reversing the conviction, the former Fifth
Circuit interpreted the terms "statement or other document" under 6 U.S.C. § 7206(1) not to include Form
433-AB. See id.It is not necessary in this case to determine whether Levy would have controlled the outcome of this
issue had Appellant raised it at the trial level. It does not dictate a reversal in this case, because Levy and the
case sub judice are sufficiently dissimilar to preclude a finding that the district court committed "plain error."
12
Even Appellant admits that the signature alone raises an inference that he knew the contents of the form.
13
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc ), this Court adopted as
binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.
11
First, unlike Levy, Appellant met with Agent Stone pursuant to a civil summons. Second, Appellant, as part
of his plea agreement, was to pay his income tax obligations for the years 1981-83 within a reasonable time.
Furthermore, Appellant's agent, through a power of attorney, signed a Form 870 "Waiver of Restriction on
Assessment and Collection of Deficiency in Tax and Acceptance of Over-assessment," in which Appellant
consented to the immediate assessment and collection of his tax liabilities. These agreements created at least
an implied obligation for Appellant to cooperate and facilitate the collection process, which may include,
filing a Form 433A. None of these factors, however, were present in Levy.
Even if we were to assume that the district court committed plain error, in order to get the relief he
requests, Appellant must show that the error "seriously affect[s] the fairness, integrity or public reputation
of judicial proceedings." Johnson v. United States, 520 U.S. 461, 469, 117 S.Ct. 1544, 1550, 137 L.Ed.2d
718 (1997) (citation omitted). Based on the record before us, we simply do not find that the district court's
oversight would have a serious effect on the integrity of the judicial system.
In sum, due to the factual dissimilarities between Levy and the case instanter, we cannot conclude that
the district court committed "plain error," nor can we find that such an error seriously affects the integrity of
the judicial system to warrant a reversal of the conviction. Accordingly, we affirm the district court's decision
to deny Appellant's motion for judgment of acquittal.
D. Sentencing issue
Appellant also challenges the 60 month sentence of imprisonment he received as a result of his
convictions. Specifically, he argues that the district court erred by including interest and penalties in
calculating the "tax loss" amount under U.S.S.G. § 2T1.1, for the purpose of calculating his base offense
level. In contrast, the government argues that the plain meaning of "tax loss" includes interest and penalties
because the term is directed to encompass the total amount of loss that Appellant intended to cause by his
actions. Since this issue deals with an interpretation of the Sentencing Guidelines, we review the district
court's decision de novo. See United States v. Maurice, 69 F.3d 1553, 1556 (11th Cir.1995).
12
Pursuant to U.S.S.G. § 2T1.1(a), the base offense level for tax evasion, or the payment thereof, is the
greater of the "level from § 2T4.1 (Tax Table) corresponding to the tax loss" or 6, if there is no tax loss. In
this case, the district court found that the total amount of loss was $3,029,737.78, which included the interest
and penalties.14 The government argues that under a plain reading of § 2T1.1(c)(1), which defines tax loss
as "the total amount of loss that was the subject of the offense (i.e., the loss that would have resulted had the
offense been successfully completed), the district court correctly included the interest and penalties as a part
of the 'tax loss'." See, e.g., United States v. Pollen, 978 F.2d 78, 91 n. 29 (3rd Cir.1992) (suggesting that the
inclusion of interest and penalties may be appropriate in evasion of payment cases.)
Although the language in § 2T1.1(c) can be read to include interest and penalties in calculating "tax
loss," we find that the phrase "total amount of loss that is subject to the offense" could also be read as not
including interest and penalties. See, e.g., United States v. Hopper, 177 F.3d 824, 832 (9th Cir.1999) (holding
that given the "plain language" of the Guidelines, the district court erred in including interest and penalties
in the amount of tax loss.) Thus, we reject the government's argument that the plain language controls the
outcome of this case, and find that the language used in the guideline provision is ambiguous.
However, the Commentary to the section resolves the ambiguity in the provision. In Application
Note 1, the Commission unequivocally states that "[t]he tax loss does not include interest and penalties."
U.S.S.G. § 2T1.1 comment. (n.1) (1997). Based on this language, the Ninth Circuit found that the term "tax
loss" does not include interest and penalties.
Although we do not find the language as "plain," as the Hopper court did, we agree with the Ninth
Circuit's holding that the term "tax loss" in § 2T1.1 does not include interest or penalties.15 The language in
14
The tax table in § 2T4.1(P) assigns a base offense level of 21 for any amount more than $ 2,500,000.00
but less than $ 5,000,000.00. Had the interest and penalties not been included in the "tax loss," Appellant's
initial base offense level would have been 17 since the principal amount of the tax liability was approximately
$540,000.00.
15
In so holding, we are mindful of the fact that excluding interest and penalties in evasion of payment cases
might not achieve the maximum accountability on the part of a defendant. Nevertheless, we must follow what
the Sentencing Commission has unequivocally stated in its commentary, since it is the best evidence of the
13
the commentary is clear: interest and penalties are excluded from the definition of "tax loss." In light of the
commentary, no other interpretation would be reasonable.
Accordingly, we hold that the district court erred in including interest and penalties in the "tax loss"
for the purpose of determining Appellant's base offense level.
IV. CONCLUSION
We AFFIRM the conviction on both counts, but we VACATE the sentence imposed and REMAND
for re-sentencing in accordance with this opinion.
Commission's intent, notwithstanding the language used in the actual Guidelines themselves.
In addition, we find no merit in the government's argument that our holding would conflict
with 26 U.S.C. § 6601(e), which states that " any reference in this title ... to any tax imposed by this
title shall be deemed also to refer to interest imposed by this section on such tax." Since imposition
of a tax is wholly independent from the imposition of a sentence for evasion thereof, we find no
conflict between the Guideline language in § 2T1.1 and the Internal Revenue Code.
14