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United States v. Yurek

United States District Court, D. Colorado

June 20, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
1. DARYL FRANCIS YUREK 2. WENDY MARIE YUREK Defendants.

          ORDER ON MOTION TO DISMISS COUNTS 4 AND 5

          William J. Martínez United States District Judge

         This matter is before the Court on Defendant Daryl Francis Yurek's (“Defendant”) Motion to Dismiss Counts 4 and 5 of the Indictment. (ECF No. 146). For the reasons explained below, the Motion is denied.

         I. BACKGROUND

         The Indictment in this case alleges that on or about September 10, 2009 and March 30, 2010, Defendant submitted two Form 433-As to the Internal Revenue Service (“IRS”). Form 433-A is a form used by IRS titled “Collection Information Statement for Wage Earners and Self-Employed Individuals.” (ECF No. 1 at 13-14.)

         The Government charges that these submissions by Defendant contained knowingly false information and were verified by Defendant as written declarations made under the penalties of perjury. (Id.) Specifically, the Government alleges that Defendant answered “No” to the question, “In the past 10 years, have any assets been transferred by the individual for less than full value?” (Id.) However, the Government charges that Defendant had, in fact, made such transfers, by transferring stock to his sons and to one of his affiliated companies for less than full value. (Id.) Based on those allegations, Counts 4 and 5 of the Indictment charge that Defendant violated 26 U.S.C. § 7206(1) of the Internal Revenue Code (“Declaration under penalties of perjury”).

         II. ANALYSIS

         In Counts 4 and 5, Defendant is charged under the following provision:

Any person who-
(1) Declaration under penalties of perjury.-Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter
* * *
shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $100, 000 ($500, 000 in the case of a corporation), or imprisoned not more than 3 years, or both, together with the costs of prosecution.

26 U.S.C. § 7206(1).

         Defendant's instant Motion argues these charges should be dismissed pursuant to United States v. Levy, 533 F.2d 969, 973-75 (5th Cir. 1976). In Levy, defendant was convicted under § 7206(1) based on having signed an IRS Form 433-AB, and the Fifth Circuit addressed “whether Form 433-AB is a ‘statement or other document' within the contemplation of [§ 7206(1)].” 533 F.2d at 970. The court acknowledged that the statute uses the words “statement” and “other document” “with no limiting exception, ” and that “[i]f we had only to look to the unadorned words, ‘statement' and/or ‘document, ' no difficulty, at least as to the meaning of the statute, would be involved.” Id. at 972. However, the Levy court went on to review the “inconclusive” legislative history, id. at 972-73, noted that “[c]riminal statutes must be strictly construed, id. at 973, and reasoned that because § 7206(1) “is a perjury statute, the party taking the statement [i.e., the IRS officer] must have the authority to take that particular statement, id. The court then held that § 7206(1) applies only “to any statement or document required by the Internal Revenue Code or by any regulation lawfully promulgated for the enforcement of the Code, ” and therefore reversed the defendant's conviction because Form 433-AB had not been required by statute or regulation. Id. at 974-75.

         Here, Defendant acknowledges that other courts have since disagreed with the result and the rationale of Levy, but argues that “the issue is undecided” in the Tenth Circuit. This is not a completely accurate characterization, however. In United States v. Franks, 723 F.2d 1482, 1485-86 (10th Cir. 1983), the Tenth Circuit reviewed a conviction under § 7206(1) for giving false answers on IRS Form 1040 schedules and rejected an argument based on Levy, noting, “[w]e are not ...


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