United States v. Boitano

Steven Boitano (defendant) did not file his personal tax returns for 1991 through 2007. At an in-person meeting in September 2009, Boitano provided returns for 2001 through 2003 to an Internal Revenue Service (IRS) agent. Boitano had signed those returns under penalty of perjury. The returns falsely showed that Boitano and his wife made estimated tax payments for the relevant years. Boitano ultimately was convicted of three felony counts of making false statements in violation of Internal Revenue Code (code) § 7206(1) and three misdemeanor counts of failing to file taxes in violation of code § 7203. Boitano pleaded guilty to the misdemeanors and went to trial on the felony charges. At trial, Boitano contended that the filing of a return was an element under § 7206(1) and that his act of handing the returns to the IRS agent was not filing. The United States conceded that filing was a § 7206(1) element, but the United States argued that Boitano filed the returns when he handed them to the IRS agent. The district court agreed with the United States. The jury convicted Boitano on the three felony counts. Boitano appealed, reiterating his trial arguments. In response, the United States conceded that Boitano did not file the returns when he handed them to the IRS agent, but it now argued that filing was not a § 7206(1) element after all. Per the United States, it was enough that Boitano relinquished any right to self-correct the returns. In support of its new position, the United States contended that (1) § 7206(1) did not expressly require filing, (2) the United States Supreme Court had not held that filing was required, (3) it made sense not to interpret § 7206(1) to require filing because § 7206(1) covered more than just tax returns, (4) § 7206(1)’s legislative history did not indicate that filing was required, and (5) filing a document was not the only way to satisfy § 7206(1). The United States did not cite any decision by the United States Court of Appeals for the Ninth Circuit that overruled the Ninth Circuit’s 1993 ruling in United States v. Hanson that filing was a § 7206(1) element. Instead, the United States asserted that the relevant portion of Hanson was dictum.