United States v. Sergio Gardea - 05/10/2018

Tax preparer found not guilty on all 30 counts of preparing false tax returns following a 2 week jury trial today. Mr Gardea was represented by Miami criminal tax lawyer David M. Garvin.

Court's Refusal to Give Good Faith Reliance Instriuction Leads to Reversal, U. S. v. KOTTWITZ, 2010-2 U.S. Tax Cases (CCH) P50,573 (11th Cir. 2010)

U. S. v. KOTTWITZ, 2010-2 U.S. Tax Cases (CCH) P50,573  (11th Cir. 2010)

          Defendants appealed from the United States District Court for the Northern District of Georgia, where they were all convicted of conspiracy to defraud the United States by impeding the Internal Revenue Service in the collection of revenue, in violation of 18 U.S.C. Section 371, and aiding and assisting in the filing of a materially false corporate tax return for 2001, and individual defendants were convicted of various additional tax-related crimes.

    On appeal, the three defendants argued that the evidence was insufficient to support their convictions and that the district court erred in refusing to give the jury a good faith reliance on accountant instruction. The court determined that defendants preserved the issue of the good faith reliance instruction through their objection in the district court. The court stated that the requested instruction properly placed the determination with the jury as to whether defendants acted in good faith in seeking advice, fully and completely reporting to their accountant, and acting strictly in accordance with the advice.

    The district court's refusal to deliver the requested instruction seriously impaired the defense on three counts. Because the evidence was sufficient to support two defendants' convictions for filing materially false personal income tax returns for 2000, and one of those defendant's conviction for evading taxes, they were granted a new trial on those counts. The court ruled that the evidence was insufficient to support defendants' convictions for aiding and assisting in the filing of a materially false corporate return for 2001.

    The court reversed two defendants' convictions for filing materially false personal income tax returns for 2000, and one defendant's conviction for evading taxes, and remanded for a new trial. The court reversed all defendants' convictions for aiding and assisting in the filing of a materially false corporate return for 2001 and remanded with directions to enter a judgment of acquittal on this count and for resentencing of the third defendant.
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