FILED
United States Court of Appeals
Tenth Circuit
November 16, 2016
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-3294
ELDON L. BOISSEAU,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 6:14-CR-10180-EFM-1)
Robin D. Fowler of Bath & Edmonds, P.A., Overland Park, Kansas, for Defendant
- Appellant.
Joseph B.Syverson, Tax Division, Department of Justice (Caroline D. Ciraolo,
Acting Assistant Attorney General, S. Robert Lyons, Acting Chief, Criminal
Appeals & Tax Enforcement Policy Section, and Gregory Victor Davis of Tax
Division, Department of Justice, and Barry R. Grissom, United States Attorney, of
Counsel, with him on the brief), Washington, D.C., for Plaintiff - Appellee.
Before KELLY, HARTZ, and MATHESON, Circuit Judges.
KELLY, Circuit Judge.
Defendant-Appellant Eldon L. Boisseau appeals from his conviction of tax
evasion, following a bench trial. 26 U.S.C. § 7201; United States v. Boisseau,
116 F. Supp. 3d 1242 (D. Kan. 2015). On appeal, he challenges the sufficiency of
the evidence and argues that the district court wrongly convicted him (1) without
evidence of an affirmative act designed to conceal or mislead, and (2) by
concluding that proof satisfying the affirmative act element of tax evasion was
sufficient to prove willfulness. Exercising jurisdiction under 28 U.S.C. § 1291,
we affirm.
Background
Mr. Boisseau, a practicing lawyer in Wichita, was charged with tax evasion
for taxes incurred between 1998 and 2008. During nine of those years, Mr.
Boisseau filed returns or amended returns reporting his tax liability, but made
only small payments. Thus, at the time of the filing of his 2008 tax return, he had
in the aggregate reported some $712,972 of tax, but only paid $212,511. In 2001,
he was also assessed a trust fund recovery penalty of $250,929 for failing to pay
withholding taxes, most of which would ultimately be paid by the comptroller of
his former law firm.
The district court determined that Mr. Boisseau willfully evaded paying his
taxes by (1) placing his law practice in the hands of a nominee owner to prevent
the Internal Revenue Service (IRS) from seizing his assets; (2) causing his law
firm to pay his personal expenses directly given an impending IRS levy, rather
than receiving wages; and (3) telling a government revenue officer that he was
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receiving no compensation from his firm when in fact the firm was paying his
personal expenses. We discuss the supporting facts as pertinent.
Discussion
A. Sufficiency of the Evidence
We view the evidence in the light most favorable to the government to
determine whether a rational factfinder could have found that the elements of the
offense were met beyond a reasonable doubt. See United States v. Sparks, 791
F.3d 1188, 1190–91 (10th Cir. 2015). We do not consider credibility or reweigh
the evidence. Id. at 1191. If the evidence could support a rational determination
of guilt beyond a reasonable doubt, the conviction will be upheld. United States
v. Lepanto, 817 F.2d 1463, 1467 (10th Cir. 1987).
The statute provides that “[a]ny person who willfully attempts in any
manner to evade or defeat any tax imposed by [the Internal Revenue Code] or the
payment thereof shall . . . be guilty of a felony.” 26 U.S.C. § 7201. To obtain a
conviction, the government must prove three elements, namely the existence of a
tax deficiency, an affirmative act constituting an evasion or attempted evasion of
the tax, and willfulness. Sansone v. United States, 380 U.S. 343, 351 (1965). As
Mr. Boisseau does not dispute that he had a substantial tax due and owing, Aplt.
Br. at 5, we need only address the remaining two elements.
1. Affirmative Act
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We begin with the affirmative act element. Because Congress has
proscribed attempts to evade taxes “in any manner,” 26 U.S.C. § 7201, the type of
affirmative conduct that can constitute an affirmative act of evasion is broad. See
Spies v. United States, 317 U.S. 492, 499 (1943). Recognizing this, the Supreme
Court has declined to define or limit what constitutes an affirmative act, but has
provided examples including maintaining a double set of books, creating false
documents, destroying books or other records, concealing assets, covering up
sources of income, conducting one’s business in a manner that avoids usual
recordkeeping, and conduct that is likely to mislead or conceal. Id. Lawful
conduct can constitute an affirmative act under § 7201 when done with the intent
to evade taxes, even if the conduct serves other purposes as well. See id.; United
States v. Jungles, 903 F.2d 468, 474 (7th Cir. 1990). The government need only
prove one affirmative act of tax evasion for each count charged. United States v.
Hoskins, 654 F.3d 1086, 1091 (10th Cir. 2011) (citing United States v.
Thompson, 518 F.3d 832, 852 (10th Cir. 2008)).
a. Law Firm Creation
Mr. Boisseau contends that the creation of his law firm was not an
affirmative act, because the firm was created with the advice of a lawyer so that
Mr. Boisseau could continue to practice law. Aplt. Br. at 18. The evidence
establishes that the lawyer informed Mr. Boisseau and his accountant (in a memo)
that the creation of an LLC owned by Mr. Boisseau would be subject to
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attachment by the IRS given Mr. Boisseau’s tax difficulties. 4 Aplt. App. 1139.
Thus, the lawyer suggested that the LLC be owned by someone else to insulate it
should the government seek to collect. Id. And, indeed, that is what occurred.
Mr. Boisseau requested that his son’s father-in-law be the sole owner of the firm.
The father-in-law had no daily involvement with the firm, performed no work for
it, and received no salary. 1 Aplt. App. 219–20, 228. In fact, he had never been
on site, and did not think it was any of his business to examine documents
pertaining to the firm’s operations. Id. 220, 238–239. The firm’s office manager
confirmed that Mr. Boisseau made the day-to-day operating decisions, including
hiring employees, selecting cases, soliciting business, and making financial
decisions. 2 Aplt. App. 384. Further, the office manager learned from Mr.
Boisseau that he was not the owner due to his “personal IRS issues,” which he did
not want to affect the firm and its clients’ accounts. Id. 385.
Viewed in the light most favorable to the government, the evidence is
sufficient. The use of a nominee owner of one’s business is a common
affirmative act supporting a conviction for tax evasion. See, e.g., United States v.
Conley, 826 F.2d 551, 553–55 (7th Cir. 1987) (describing defendant who evaded
paying his taxes by placing assets in the names of others to avoid seizure by the
IRS); United States v. Hook, 781 F.2d 1166, 1168 (6th Cir. 1986) (discussing
defendant’s conduct in concealing his assets by forming a corporation with his
wife and daughters as nominee owners); Cohen v. United States, 297 F.2d 760,
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762 (9th Cir. 1962) (describing defendant who placed assets in the name of others
and had others pay for his obligations to defeat the payment of his income tax
liabilities). Merely because the ownership structure was created in part to further
legitimate ends does not override the evidence suggesting that Mr. Boisseau
created the entity to frustrate the government’s lawful collection efforts. Conduct
that serves a purpose other than tax evasion can still constitute a willful attempt
to defeat or evade taxes where the tax-evasion motive is present. See Spies, 317
U.S. at 499. And, as noted above, this is true even of lawful conduct, such as the
use of a nominee, if done with the intent to evade taxes. Cf. Jungles, 903 F.2d at
474.
b. Alteration of Compensation
Mr. Boisseau argues that switching his compensation from payment of a
salary to payment of his personal expenses after an IRS bank levy was not an
affirmative act of avoidance or concealment. He suggests that the timing of
events, the ostensibly confusing nature of his resignation letter, his tax reporting,
and his disclosures to the IRS contradict the district court’s contrary view.
The evidence is plainly sufficient. The lawyer that set up the law firm
explained that the IRS could attach any salary or bonus paid to Mr. Boisseau, and
stressed the importance of tying down the compensation arrangements in writing,
otherwise the IRS could claim it was entitled to everything. 4 Aplt. App. 1148.
Beginning in January 2006, the firm paid Mr. Boisseau’s salary by direct deposit
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into his checking account. But after an IRS levy was placed on his account, Mr.
Boisseau drafted a letter indicating that he was resigning from the firm and
wanted to terminate his pay agreement. 2 Aplt. App. 393–94; 4 Aplt. App. 1084.
And so he did, while continuing to work on cases. 2 Aplt. App. 394. The
revenue officer served a wage levy on the firm, and the firm said it had no wages
to turn over. But the law firm continued to compensate Mr. Boisseau at his
direction by paying his personal expenses. Id. 396–431. Before the levy on his
personal checking account, the firm did not regularly pay these expenses, nor did
it compensate other employees in this manner. Id. at 430–31. Although Mr.
Boisseau received four paychecks after his resignation and alteration of
compensation, their receipt was timed to when Mr. Boisseau proposed an
installment agreement with the IRS, and the IRS rejected it, and immediately
prior to Mr. Boisseau’s filing for bankruptcy. 5 Aplt. App. 1334–37, 1420, 1440,
1447–53. Because these events halted the IRS’s collection efforts, the district
court found the timing of Mr. Boisseau’s receipt of these paychecks indicated that
his proposed installment plan was not made in good faith. Boisseau, 116 F. Supp.
3d at 1250–51.
Essentially, Mr. Boisseau is asking this court to review the evidence in the
light most favorable to him, but that is not the correct standard. The trial judge
heard and saw the evidence and made the perfectly reasonable finding that the
purpose of changing the compensation method was to avoid the levy.
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c. Misrepresentation to the IRS
When Mr. Boisseau appeared before the revenue officer, she asked him
how he was paying his personal expenses given his resignation in response to the
levy. According to the revenue officer, Mr. Boisseau indicated that his children
and other family members paid them, and that he received no compensation from
the firm. 2 Aplt. App. 345–46. Mr. Boisseau argues that any omission in his
statements (which he does not concede) could not constitute an affirmative act of
avoidance or concealment for two main reasons. First, the statements were
corrected when his lawyer informed the IRS that the firm had been paying his
personal expenses. Second, Mr. Boisseau claimed these payments as Schedule C
income when he filed his taxes. Plainly, it was up to the trier of fact to judge the
credibility of the witnesses and what weight to give Mr. Boisseau’s explanations.
Suffice it to say that a rational trier of fact could conclude that the statements
were not accurate and constituted an affirmative act to evade.
2. Willfulness
Next we turn to whether the government proved beyond a reasonable doubt
that Mr. Boisseau’s conduct was willful. Under § 7201, willfulness is the
“voluntary, intentional violation of a known legal duty.” Cheek v. United States,
498 U.S. 192, 201 (1991). Typically, willfulness is established based on
circumstantial evidence or inferences arising from a defendant’s conduct. See
United States v. Melot, 732 F.3d 1234, 1240–41 (10th Cir. 2013). It is “closely
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connected” to the affirmative act element. United States v. Romano, 938 F.2d
1569, 1572 (2d Cir. 1991). Indeed, “[e]vidence of affirmative acts may be used to
show willfulness, and the defendant must commit the affirmative acts willfully to
be convicted of tax evasion.” Id.
We conclude that a reasonable factfinder could determine that the
government proved willfulness beyond a reasonable doubt. The evidence
demonstrates that Mr. Boisseau was aware of his legal obligation to pay taxes and
his substantial tax liabilities, a conclusion buttressed by the fact that Mr. Boisseau
was an experienced attorney. See Conley, 826 F.2d at 556; see also United States
v. Guidry, 199 F.3d 1150, 1157–58 (10th Cir. 1999) (defendant’s business degree
and accounting experience supported willfulness). Moreover, a reasonable
factfinder could conclude that Mr. Boisseau’s conduct over time demonstrated his
intent to avoid collection, whether it be creating the law firm in the name of a
nominee due to his personal tax issues, altering the method of compensation to
defeat a levy, or misstating the true facts about his compensation to the revenue
officer. These facts speak to his specific intent to evade, thereby demonstrating
that his conduct was willful. Cf. United States v. Vernon, 814 F.3d 1091,
1099–101 (10th Cir. 2016) (discussing how the use of a sham corporation to
conduct business and pay personal expenses supported the defendant’s
willfulness); United States v. Daniel, 956 F.2d 540, 542–43 (6th Cir. 1992)
(finding defendant’s use of others’ credit cards for personal expenses and of
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family members as nominees to execute transactions was proof of willfulness).
Indeed, the statements of Mr. Boisseau and those who served him at his direction
reasonably support a determination that he voluntarily, intentionally, and
repeatedly violated a known legal duty.
We have considered Mr. Boisseau’s other arguments regarding the
sufficiency of the evidence, but find them to be without merit. Because a rational
factfinder could conclude that the government proved all three elements of tax
evasion under § 7201 beyond a reasonable doubt, the evidence was sufficient.
B. Legal Standards
Mr. Boisseau also argues that his conviction was the product of two legal
errors. He argues that proof of an affirmative act of tax evasion cannot be
established without evidence that the act was designed to conceal or mislead, and
that proof satisfying the affirmative act element is not sufficient, in and of itself,
to prove the willfulness element.
Regarding his first challenge, Mr. Boisseau relies upon United States v.
Meek, in which we stated, “An affirmative act requires more than the passive
failure to file a tax return; rather, it requires a positive act of commission
designed to mislead or conceal.” 998 F.2d 776, 779 (10th Cir. 1993). In light of
this precedent, Mr. Boisseau contends that the district court erred in stating that
the government did not need to prove that he misled or concealed assets from the
IRS. See Boisseau, 116 F. Supp. 3d at 1257. The government argues, inter alia,
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that the district court properly recognized the Supreme Court’s recent decision in
Kawashima v. Holder demonstrates that “the elements of tax evasion pursuant to
§ 7201 do not necessarily involve fraud or deceit” and that “it is possible to
willfully evade or defeat payment of a tax under § 7201 without making any
misrepresentation.” 132 S. Ct. 1166, 1175 (2012). Mr. Boisseau asserts that this
language in Kawashima is dicta and does not overturn this court’s decision in
Meek requiring a positive act designed to mislead or conceal.
We need not resolve this issue, however, because Mr. Boisseau lacks the
factual predicate to make it given the district court’s evaluation of the evidence.
The district court addressed Mr. Boisseau’s contention that the affirmative acts
must mislead or conceal, and clearly stated that “[Mr.] Boisseau did mislead or
conceal.” Boisseau, 116 F. Supp. 3d at 1257. It found that Mr. Boisseau’s
conduct in using a nominee, altering his compensation, and misrepresenting his
compensation to the IRS was not only intentional but also inherently misleading.
Id. In light of its findings, there was simply no need to expressly state that Mr.
Boisseau’s conduct was “designed to conceal or mislead.”
As to Mr. Boisseau’s second argument, he asserts that because the
willfulness and affirmative act elements are distinct, the district court erred in
relying on the Second Circuit’s decision in United States v. Romano to conclude
“if the affirmative act element is satisfied, there is no question that willfulness is
also present.” Boisseau, 116 F. Supp. 3d at 1256 (quoting Romano, 938 F.2d at
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1572). The government responds that this argument was not preserved, and that
the district court clearly stated that the elements were separate, defined
willfulness in accordance with Supreme Court precedent to mean “the voluntary,
intentional violation of a known legal duty,” Cheek, 498 U.S. at 201, and found
that each component of that definition was satisfied here.
Regardless of whether the error was preserved, and having considered each
of Mr. Boisseau’s contentions, we conclude the government has the better
argument. The district court’s opinion, taken as a whole, demonstrates that the
court treated the affirmative act element and the willfulness element as distinct.
It defined the elements separately, and separately discussed which facts in the
record proved each element beyond a reasonable doubt. Thus, the error, if any
there be, was harmless because the district court simply did not conflate the
affirmative act and willfulness elements of § 7201.
AFFIRMED.
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