United States v. Boisseau

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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