Law360, New York (November 16, 2016, 7:37 PM EST) — The Tenth Circuit on Wednesday affirmed the criminal conviction of a Kansas attorney who failed to pay more than $1 million in taxes and tried to dodge the IRS by having his law firm cover his personal expenses, rejecting his argument that the evasion was improperly found to be willful.
In a published opinion, U.S. Circuit Judge Paul Kelly Jr. dismissed arguments by Wichita attorney Eldon L. Boisseau that his July 2015 conviction on tax evasion charges stemming from his failure to pay appropriate income tax for a decade was based on evidence that failed to show his actions were willful or “designed” to mislead the IRS.
The judge pointed out that, in fact, Boisseau evaded paying income taxes by putting a newly established law practice, the Law Offices of Eldon L. Boisseau LLC, under the control of a nominee owner, causing his firm to pay his personal expenses directly instead of receiving wages when he knew a tax levy was impending, and by telling a government officer that he was not receiving compensation from the firm.
Although Boisseau argued that the creation of his law firm was not an affirmative act of tax evasion, but rather one that simply allowed him to continue practicing law in spite of his tax issues, Judge Kelly noted that the attorney’s own lawyer suggested in emails that an LLC would only be able to avoid IRS attachment if it were technically owned by someone other than Boisseau.
“And, indeed, that is what occurred,” Judge Kelly went on. “Mr. Boisseau requested that his son’s father-in-law be the sole owner of the firm. The father-in-law had no daily involvement with the firm, performed no work for it, and received no salary. The firm’s office manager confirmed that Mr. Boisseau made the day-to-day operating decisions, including hiring employees, selecting cases, soliciting business, and making financial decisions.”
Moreover, the firm’s office manager said during the underlying litigation that Boisseau had plainly informed her that he was not the owner of the firm because of his “personal IRS issues,” according to the opinion.
“Viewed in the light most favorable to the government, the evidence is sufficient,” Judge Kelly added Wednesday.
As for Boisseau’s argument that having the firm pay his expenses directly instead of drawing a salary was not an affirmative act of avoidance or concealment of his income, the judge rejected the argument out of hand, saying the evidence is “plainly sufficient” according to the opinion.
“Moreover, a reasonable fact finder could conclude that Mr. Boisseau’s conduct over time demonstrated his intent to avoid collection, whether it be creating the law firm in the name of a nominee due to his personal tax issues, altering the method of compensation to defeat a levy, or misstating the true facts about his compensation to the revenue officer,” Judge Kelly said. “These facts speak to his specific intent to evade, thereby demonstrating that his conduct was willful.”
After Boisseau’s 2015 conviction for evading taxes between 1998 and 2008, which, with accumulated interest left him owing $1.1 million to the government, he was sentenced in November of that year to 30 months in prison, along with one year of supervised release.
He had faced a maximum penalty of five years in federal prison and a fine up to $250,000, according to court records.
Boisseau is represented by Thomas J. Bath Jr., Mitch E. Biebighauser and Robin D. Fowler of Bath & Edmonds PA.
The government is represented by Alan G. Metzger and Sean M. Green of the U.S. Attorney’s Office in Wichita.
The case is USA v. Boisseau, number 15-3294, in the U.S Court of Appeals for the Tenth Circuit.
The underlying case is USA v. Boisseau, number 6:14-cr-10180, in the U.S. District Court for Kansas.
–Additional reporting by Bonnie Eslinger and Caroline Simson. Editing by Orlando Lorenzo.