305 371-8101

Taxpayer Appealed, Court Would Not Permit His Expert at Sentencing to Testify

Taxpayer Appealed When Court Would Not Permit His Expert at Sentencing to Testify as to Tax Loss After Accelerated Depreciation

U.S. v. Sherman,  U.S. App. Lexis 7661  (8th Cir. 2010)

Sherman was charged with seven counts, alleging violations of 26 U.S.C. 7206 for making false declarations on both his personal and corporate federal tax returns for the years 2002 through 2004.

Following the Franks hearing, the magistrate judge filed a report and recommendation, the magistrate judge also concluded the Franks standard only applies to government agents, therefore, there was no Franks violation and probable cause existed for the issuance of the search warrants.

Sherman filed a detailed affidavit in support of his request for a Franks hearing and his motion to suppress the evidence seized under the search warrant.

Sherman entered conditional guilty pleas to one count of making a false declaration on his 2003 personal income tax return and one count of making a false declaration on his 2004 corporate income tax return in violation of 26 U.S.C. 7206(1).

At sentencing, Sherman objected to the district court's refusal to allow expert testimony on the tax dollar loss for purposes of calculating his advisory guideline range.

Sherman was sentenced to two months incarceration on each count, to be served concurrently, followed by one year of supervised release.

The appeal followed, on which Sherman claims the district court erred at sentencing by not allowing him to present expert testimony to show the actual tax dollar loss suffered by his failure to report all income was under the threshold of $ 30,000 contained in United States Sentencing  Guideline Section  2T4.1(E).

To achieve this end, Sherman intended to introduce new, accelerated depreciation costs and tax benefits on all the tax returns in question. Had this evidence prevailed, Sherman argues his guideline range would have allowed a sentence of home detention and probation. U.S.S.G. Section 5C1.1C.

Sherman also claims the district court erred in not applying the rationale of United States v. Gordon, 291 F.3d 181 (2d Cir. 2002).  The Court found Gordon to be factually distinguishable.

The court found that the "total amount of loss that was the object of the offense" under section 2T1.1(c)(1) was $54,058, this figure was what Sherman sought to avoid paying in taxes by failing to properly report income and making false declarations on his tax returns, under the particular circumstances of this case, the district court properly considered section 2T1.1(c)(1) and Sherman's plea for leniency in imposing a sentence at a level below the recommended guideline range. United States v. Moore, 581 F.3d 681 (8th Cir. 2009).

The judgment of the district court was affirmed.

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