936 F.2d 96 (2nd Cir. 1991), 1647, United States v. DiPetto

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation936 F.2d 96
Date18 June 1991
PartiesUNITED STATES of America, Appellee, v. John J. DiPETTO and Michele DiPetto, Defendants-Appellants.
Docket NumberDocket 90-1681.,1647

Page 96

936 F.2d 96 (2nd Cir. 1991)

UNITED STATES of America, Appellee,

v.

John J. DiPETTO and Michele DiPetto, Defendants-Appellants.

No. 1647, Docket 90-1681.

United States Court of Appeals, Second Circuit

June 18, 1991

Argued May 22, 1991.

Page 97

Jared J. Scharf, White Plains, N.Y., for defendants-appellants.

Brett Dignam, Tax Division., Dept. of Justice, Washington, D.C. (Shirley D. Peterson, Asst. Atty. Gen., Robert E. Lindsay, Alan Hechtkopf, Tax Div., Dept. of Justice, Washington, D.C.), for appellee.

Before VAN GRAAFEILAND, MESKILL and McLAUGHLIN, Circuit Judges.

PER CURIAM:

This is an appeal from a judgment of conviction of the United States District Court for the Southern District of New York, Cannella, J., entered after a jury trial. John and Michele DiPetto were found guilty of four counts of willfully and knowingly attempting to evade income taxes in violation of 26 U.S.C. Sec. 7201. On appeal the DiPettos contend the government failed to prove the elements of evasion of the assessment of income tax as it was charged in the indictment. They also claim that the statute of limitations applicable to any counts arising out of the false forms W-4 filed in 1983 had expired before the indictment was returned.

Affirmed.

We reject the DiPettos' arguments. There was ample evidence in the record to support the jury's conviction of the DiPettos for evasion of income tax as it was charged in the indictment. The Supreme Court has specified the three elements of income tax evasion: (1) "willfulness;" (2) "the existence of a tax deficiency;" and (3) "an affirmative act constituting the evasion or attempted evasion of the tax." Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 1010, 13 L.Ed.2d 882 (1965). The evidence substantiated the jury's necessary conclusion that the DiPettos filed false forms W-4 in an attempt to mislead the government or conceal from the government the correct amount of their taxable income. Furthermore, by maintaining rather than correcting the false W-4s the DiPettos perpetuated their attempted deception. See United States v. Williams, 928 F.2d 145, 149 (5th Cir.1991). The filing and maintaining of the false forms W-4 satisfied the affirmative act requirement set forth in Spies v. United States, 317 U.S. 492, 499, 63 S.Ct. 364, 368, 87 L.Ed. 418 (1943). After April 15 of each year in which the DiPettos failed to file tax returns a substantial tax was owed to the...

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34 practice notes
  • 978 F.2d 1177 (10th Cir. 1992), 91-8073, United States v. Payne
    • United States
    • Federal Cases United States Courts of Appeals United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 28, 1992
    ...deficiency until his tax liability for the years 1984-87 became due--i.e. April 15 of each succeeding year. See United States v. DiPetto, 936 F.2d 96, 97 (2d Cir.) (per curiam) (tax deficiency element satisfied after April 15 of each year defendant failed to file tax return), cert. denied, ......
  • Tax evasion.
    • United States
    • American Criminal Law Review Vol. 32 Nbr. 2, January 1995
    • January 1, 1995
    ...266 (5th Cir. 1994) (preparing fraudulent Form 637 with forged signatures fulfills affirmative act requirement); United States v. Dipetto, 936 F.2d 96, 97 (2d Cir.) (defendant's filing of false W-4 information held to be an affirmative act), cert. denied, 112 S. Ct. 193 (1991); United State......
  • Tax evasion.
    • United States
    • American Criminal Law Review Vol. 33 Nbr. 3, March 1996
    • March 22, 1996
    ...266 (5th Cir. 1994) (preparing fraudulent Form 637 with forged signatures fulfills affirmative act requirement); United States v. DiPetto, 936 F.2d 96,97 (2d Cir.) (defendant's filing of false W-4 information held to be an affirmative act), cert. denied, 112 S. Ct. 193 (1991); United States......
  • Tax evasion.
    • United States
    • American Criminal Law Review Vol. 34 Nbr. 2, January 1997
    • January 1, 1997
    ...266 (5th Cir. 1994) (preparing fraudulent Form 637 with forged signatures fulfills affirmative act requirement); United States v. DiPetto, 936 F.2d 96, 97 (2d Cir. 1991) (defendant's filing of false W-4 information held to be an affirmative act); United States v. Connor, 898 F.2d 942, 945 (......
  • Request a trial to view additional results
16 books & journal articles
  • Tax violations.
    • United States
    • American Criminal Law Review Vol. 36 Nbr. 3, June 1999
    • June 22, 1999
    ...1994) (stating that preparing fraudulent Form 637 with forged signatures fulfills affirmative act requirement); United States v. DiPetto, 936 F.2d 96, 97 (2d Cir. 1991) (holding filing of W-4 Form with false information was affirmative act); United States v. Connor, 898 F.2d 942, 945 (3d Ci......
  • Tax violations.
    • United States
    • American Criminal Law Review Vol. 37 Nbr. 2, March 2000
    • March 22, 2000
    ...1994) (stating that preparing fraudulent Form 637 with forged signatures fulfills affirmative act requirement); United States v. DiPetto, 936 F.2d 96, 97 (2d Cir. 1991) (holding filing of W-4 Form with false information was affirmative act); United States v. Connor, 898 F.2d 942, 945 (3d Ci......
  • Tax evasion.
    • United States
    • American Criminal Law Review Vol. 32 Nbr. 2, January 1995
    • January 1, 1995
    ...266 (5th Cir. 1994) (preparing fraudulent Form 637 with forged signatures fulfills affirmative act requirement); United States v. Dipetto, 936 F.2d 96, 97 (2d Cir.) (defendant's filing of false W-4 information held to be an affirmative act), cert. denied, 112 S. Ct. 193 (1991); United State......
  • Tax evasion.
    • United States
    • American Criminal Law Review Vol. 33 Nbr. 3, March 1996
    • March 22, 1996
    ...266 (5th Cir. 1994) (preparing fraudulent Form 637 with forged signatures fulfills affirmative act requirement); United States v. DiPetto, 936 F.2d 96,97 (2d Cir.) (defendant's filing of false W-4 information held to be an affirmative act), cert. denied, 112 S. Ct. 193 (1991); United States......
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