United States v. Allen Davison

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2327
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Allen R. Davison, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 29, 2010
Filed: January 31, 2011
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Before LOKEN, MURPHY, and BENTON, Circuit Judges.
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PER CURIAM.
The United States commenced this civil action seeking to enjoin Allen
Davison, a certified public accountant and tax advisor, from selling fraudulent tax
shelters and giving federal tax advice. After a lengthy bench trial, the district court1
entered an order invoking its authority to take action to enforce the federal tax laws,
see 26 U.S.C. § 7402(a), and enjoining Davison from creating, promoting, or selling
certain tax schemes, and requiring him to give the Internal Revenue Service (IRS)
information about his tax counseling practice. Davison appeals, arguing that the
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
government failed to prove it was entitled to an injunction, and that the injunction
requiring Davison to disclose the names of his tax clients to the IRS requires him to
breach fiduciary duties to his clients and violates both his First Amendment right of
free speech and his clients’ privacy rights.
After careful review, we conclude that the district court did not abuse its
discretion in issuing the injunction. The government presented substantial evidence
supporting the district court’s findings that Davison knowingly created and promoted
numerous tax evasion schemes. The court carefully considered and weighed the
relevant factors that inform a district court’s decision whether to grant a permanent
injunction. See Oglala Sioux Tribe v. C&W Enters., Inc., 542 F.3d 224, 229 (8th Cir.
2008). Accordingly, the decision of the district court and, with one exception, the
provisions of the permanent injunction are affirmed.
The first sentence of the injunction enjoins Davison from promoting or selling
specific types of tax plans discussed in the court’s lengthy opinion and then adds, “or
any other illegal tax scheme, plan, or device, even if not specifically addressed
herein.” This add-on proviso is not sufficiently specific because the term “illegal tax
scheme” is both vague and undefined. See Fed. R. Civ. P. 65(d)(1)(B). The proviso
is also an injunction to obey the law that is overbroad under general equitable
principles. See Jake’s, Ltd., Inc. v. City of Coates, 356 F.3d 896, 904 (8th Cir. 2004).
Accordingly, we remand with instructions to replace this proviso with the term, “or
any other tax scheme, plan, or device that involves the types of sham companies,
sham contracts, or bogus deductions addressed herein.”
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