First, with respect to Azeez-Taiwo’s degree of scienter, Azeez-Taiwo was convicted of fifteen counts of willfully aiding and assisting in the preparation of false income tax returns. (Facts ¶¶ 9, 12; see 26 U.S.C. § 7206(2).) As noted above, Azeez-Taiwo cannot dispute that fact.

United States v. Pirro, 212 F.3d 86, 89 (2d Cir. 2000). Case 1:05-cr-00888-LAK Document 209 Filed 01/12/06 Page 12 of 37 6 violation of 26 U.S.C. § 7206(2) (Ind. ¶ 76).7 Counts Two through Forty charge the substantive crime of income tax evasion in violation of 26 U.S.C. § 7201 and 18 U.S.C. § 2.8 Each of these alleged crimes – the conspiracy charge (and each of its four objects) and the substantive income tax evasion counts – requires “willfulness.”

Although the United States is not arguing in this motion that Omega Forex is collaterally estopped from denying fraud with respect to the Case 2:14-cv-00915-BSJ Document 54 Filed 09/30/16 Page 38 of 63 39 1998 and 1999 Omega Forex returns, these convictions are nevertheless powerful evidence of such fraud. Evanson was also convicted under 26 U.S.C. § 7206(2) of multiple counts of aiding and assisting in the preparation of false income tax returns that claimed the Omega Forex losses. (SUMF # 28).

This is a red herring. The amount underreported is not an element of the offense of filing a false tax return under 26 U.S.C. § 7206(1). Moreover, the defense has been provided in discovery with the specific tax returns in question, the files provided to the Liews’ return preparer, relevant contracts and contract-related documents, and the company bank records that reflect unreported gross receipts.

Section 6201 concerns the assessment authority of the Secretary of the Treasury. A criminal violation under 26 U.S.C. § 7206(1) concerns the making and subscribing of a false return. A tax deficiency is not an element of the crime.

3 Case 2:08-cr-20585-GER-DAS Document 68 Filed 09/16/2009 Page 3 of 9 LIST OF AUTHORITIES • Order of this Court dated June 24, 2009 • Local Rule 7.1 Motion Practice (c) (2) Briefs 4 Case 2:08-cr-20585-GER-DAS Document 68 Filed 09/16/2009 Page 4 of 9 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION UNITED STATES OF AMERICA, Plaintiff, v. PETER HENDRICKSON, Defendant Case 2:08-cr-20585-GER-DAS VIO: 26 U.S.C. 7206(1) DEFENDANT’S BRIEF IN SUPPORT OF DEFENDANT’S RESPONSE TO GOVERNMENT’S MOTION TO STRIKE DEFENDANT’S PROPOSED WITNESSES FACTUAL BACKGROUND The Defendant, in a timely manner, sent to the government a list of its proposed witnesses in this case pursuant to the Order of the Court dated June 24, 2009. The government requested additional information about the witnesses although the government had provided to the defendant only the names of its proposed witnesses, their occupation and the city and state of their residence.

Similarly, the introduction of allegedly false Forms 1040s for the calendar years 2005 and 2006 are extraneous, highly prejudicial and would result in yet another subtrial if the defendant is required to respond to that evidence. The government apparently neglected to seek an indictment for the filings of the allegedly false forms, although it now claims that the filing of those forms constituted criminal violations of 26 USC Section 7206(1). If the government thought that the filing of those forms was criminal, it could have sought an indictment for those alleged crimes at the outset, or it could have sought a superseding indictment.

The test for relevancy under FRE 401 requires that the evidence “has any tendency to make a fact more or less probable than it would be without the evidence” and the fact is of consequence in determining the action. To prove that Defendant willfully filed a false tax return under 26 U.S.C. § 7206(1), the government must demonstrate the existence of four elements beyond a reasonable doubt: (1) the defendant made or caused to be made a federal income tax return that [he] verified was true; (2) the return was false as to a material matter; (3) the defendant signed the return willfully and knowing it was false; and (4) the return contained a written declaration that it was made under penalty of perjury. To prove that defendant failed to file a tax return in violation of 26 U.S.C. § 7203, the government must prove that defendant: (1) was required to pay taxes; (2) that he failed to pay the taxes; and (3) that he acted willfully in failing to pay.

I. BACKGROUND Defendant has been charged with one count of filing a false tax return for calendar year 2008, in violation of 26 U.S.C. § 7206(1) (Count One), and two counts of failing to file a tax return in calendar years 2009 and 2010, in violation of 26 U.S.C. § 7203 (Counts Two and Three). To prove that Defendant willfully filed a false tax return under 26 U.S.C. § 7206(1), the government must demonstrate the existence of four elements beyond a reasonable doubt: "(1) the defendant made or caused to be made a federal income tax return that [he] verified was true; (2) the return was false as to a material matter; (3) the defendant signed the return willfully and knowing it was false; and (4) the return contained a written declaration that it was made under penalty of perjury." United States v. Hills, 618 F.3d 619, 638 (7th Cir. 2010).

That reliance would be misplaced. In Shortt Accountancy, which is controlling law in this Circuit and decided before Bank of New England, the defendant corporation was convicted of violating 26 U.S.C. § 7206(1), which proscribes making and submitting a false income tax return. See Shortt Accountancy, 785 F.2d at 1451-52.