The Supreme Court Adds Tax Crimes under IRC §7206 to the List of Aggravated Felonies Requiring Deportation of an Offending Alien

Feb 23, 2012   

On February 21, 2012, in Kawashima v. Holder, the Supreme Court affirmed the deportation of Mr. Kawashima, who pleaded guilty to one count of “willfully making and subscribing a false tax return” in violation of IRC §7206(1), and Mrs. Kawashima, who pleaded guilty to one account of “aiding and assisting in the preparation of a false tax return” in violation of IRC §7206(2).  A copy of the courts decision is available here.

Specifically, the Supreme Court found that convictions under IRC §§7206(1) and (2) where the Governments revenue loss exceeded $10,000, qualified as aggravated felonies pursuant to 8 U.S.C. §1101(a)(43)(M).  Because 8 U.S.C. §1227(a)(2)(A)(iii) provides that “[a]ny alien who is convicted of an aggravated felony at any time after admission is deportable,” the Supreme Court found that the Kawashimas convictions necessitated deportation. 
8 U.S.C. §1101(a)(43)(M) defines an aggravated felony as:

  1. Involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or
  2. Is described in section 7201 of title 26 in which the loss to the Government exceeds $10,000. 

Notably, the provision specifically cites to crimes under IRC §7201 and does not mention IRC §7206, the statute relating to the Kawashimas convictions.  Consequently, the classification of the Kawashimas crimes as “aggravated felonies” occurred pursuant to 8 U.S.C. §1101(a)(43)(M)(i) as crimes “involving fraud and deceit.”

The Kawashimas asserted that “textual differences between Clause (i) and Clause (ii) [of 8 U.S.C. §1101(a)(43)(M)] indicate that Congress intended to exclude tax crimes from Clause (i).”  Kawashima at 7.  The Supreme Court appeared to find Congresss specific mention of tax crimes under IRC §7201 in Clause (ii) of 8 U.S.C. §1101(a)(43)(M) to be insignificant in its analysis.   

The difference in language does not establish Congress intent to remove tax crimes from the scope of Clause (i).  Clause (i) covers a broad class of offenses that involve fraud or deceit.  Clause (i) thus uses correspondingly broad language to refer to the wide range of potential losses and victims. Clause (ii), on the other hand, is limited to the single type of offense described in IRC §7201 (relating to tax evasion), which, by definition, can be only one type of loss (revenue loss) to one type of victim (the Government.)  Congress decision to tailor Clause (ii)s language to match the sole type of offense covered by Clause (ii) does not demonstrate that Congress also intended to implicitly circumscribe the broad scope of Clause (i)s plain language.

Id. (emphasis added).

Furthermore, the Supreme Court found it irrelevant that neither fraud nor deceit are formal elements to procure a conviction under IRC §7206. 

IRC §7206 provides in pertinent:

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; or

(2) Aid or assistance
Willfully aids or assists in, or procures, counsels, or advises the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a return, affidavit, claim, or other document, which is fraudulent or is false as to any material matter, whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such return, affidavit, claim, or document;
. . . 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.

With regard to Mr. Kawashimas conviction under IRC §7206(1), the Supreme Court stated:

Although the words Ëœfraud and Ëœdeceit are absent from the text of IRC §7206(1) and are not themselves formal elements of the crime, it does not follow that his offense falls outside of [8 U.S.C. §1101(a)(43)(M)(i)].  The scope of that clause is not limited to offenses that include fraud or deceit as formal elements.  Rather Clause (i) refers more broadly to offenses that “involve” fraud or deceit “ meaning offenses that necessarily entail fraudulent or deceitful conduct . . . Because Mr. Kawashimas conviction established that Ëœhe knowingly and willfully submitted a tax return that was false as to a material matter, he therefore committed a felony that involved Ëœdeceit. 

Id at 5. (emphasis added).

With regard to Mrs. Kawashimas conviction under IRC §7206(2), the Supreme Court stated that her conviction “establishes that, by knowingly and willfully assisting her husbands filing of a materially false tax return, Mrs. Kawashima also committed a felony that involved Ëœdeceit.”  Id. at 6.

In its holding, the Supreme Court has refused to acknowledge the ambiguity of 8 U.S.C. §1101(a)(43)(M), is facially open to more than one interpretation.  While recognizing this ambiguity, Justice Ginsberg stated in her dissent:  

If the two proffered constructions of subparagraph (M) are plausible in roughly equal measure, than our precedent directs us to construe the statute in the Kawashimas favor . . .  We resolve doubts in favor of the alien because deportation is a drastic measure. 

Id. at 3.  (emphasis added).
In her dissent, Justice Ginsberg also identified numerous other offenses, which pursuant to the Courts analysis, would now be deemed “aggravated felonies” requiring deportation.

Many federal tax offenses, like IRC § 7206 involve false statements or misleading conduct.  See, e.g., §7202 (failing to truthfully account for and pay taxes owed).  Conviction of any of these offenses, if the Courts construction were correct, would render an alien deportable.  So would conviction of state and local tax offenses involving false statements . . . [S]ee, e.g., Del. Code Ann., Tit. 30 §574 (2009) (submitting a tax return false as to any material matter is a criminal offense); D.C. Code §47-4106 (2001-2005) (same); Ala. Code §40-29-114 (2003) (same); Va. Code Ann. §58.1-1815 (2009) (willfully failing to account truthfully for or pay certain taxes is a criminal offense.).

Id. at. 8. (emphasis added).

Following Justice Ginsburgs logic, it becomes likely that immigration proceedings may now be initiated in a variety of instances where deportation was previously little more than a remote threat.  Not only foreign persons residing in the U.S., but return preparers, accountants, immigration lawyers, tax lawyers, and criminal defense lawyers should be aware of this decision and govern themselves accordingly.

If you have any questions regarding tax crimes under IRC §7206, IRC §7201, or any other tax provision, please contact Fuerst Ittleman, PL at contact@fidjlaw.com.