United States v. John J. Dipetto & Michele Dipetto, 936 F.2d 96 (2d Cir. 1991). · Go Syfert
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United States v. John J. Dipetto & Michele Dipetto, 936 F.2d 96 (2d Cir. 1991). Cases Citing This Book View Copy Cite
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cited 2× by 1 distinct case, last quoted 1996 · (1) willfulness; (2) the existence of a tax deficiency; and (3) an affirmative act constituting the evasion or attempted evasion of the tax. at p. 97 ✓
17 citation events (11 in the last 25 years) across 7 distinct courts.
Top citers, strongest first. 12 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Craig Orrock
9th Cir. · 2022 · confidence medium
See, e.g., United States v. Ferris, 807 F.2d 269, 271 (1st Cir. 1986); United States v. DiPetto, 936 F.2d 96, 98 (2d Cir. 1991) (per curiam); United States v. Wilson, 118 F.3d 228, 236 (4th Cir. 3 We are mindful that the defendant in DeTar attempted to evade the payment of taxes, 832 F.3d at 1113, while Orrock challenges his evasion of assessment conviction.
discussed Cited as authority (rule) United States v. Adams
2d Cir. · 2020 · signal: cf. · confidence medium
United States v. Kelly, 147 F.3d 172, 177 (2d Cir. 1998) (holding that it was not plain error for the district court to apply a six-year limitations period to violations of § 7212(a)); see also United States v. Wilson, 118 F.3d 228, 236 (4th Cir. 1997) (“The limitations period 22 for a violation of § 7212(a) . . . begins to run on the date of the last corrupt act.”); cf. United States v. DiPetto, 936 F.2d 96, 98 (2d Cir. 1991) (limitations period for tax evasion runs from “the day of the last act of evasion”).
discussed Cited as authority (rule) United States v. Terry
2d Cir. · 2019 · confidence medium
The elements of tax evasion are ʺ(1) willfulness; (2) the existence of a tax deficiency; and (3) an affirmative act constituting the evasion or attempted evasion of 3 the tax.ʺ United States v. Klausner, 80 F.3d 55, 61 (2d Cir. 1996) (quoting United States v. DiPetto, 936 F.2d 96, 97 (2d Cir. 1991)).
discussed Cited as authority (rule) United States v. Charles Irby, Jr.
5th Cir. · 2012 · confidence medium
See, e.g., United States v. Anderson, 319 F.3d 1218, 1219-20 (10th Cir.2003) (“Section 7201 criminalizes not just the failure to file a return or the filing of a false return, but the willful attempt to evade taxes in any manner.”); United States v. Carlson, 235 F.3d 466, 470 (9th Cir.2000); United States v. Wilson, 118 F.3d 228, 236 (4th Cir.1997); United States v. Dandy, 998 F.2d 1344, 1355-56 (6th Cir.1993) (“To hold that the statute of limitations for income tax evasion ... began to run on the date the returns were filed would reward defendant for successfully evading discovery of hi…
cited Cited as authority (rule) United States v. Mui
2d Cir. · 2007 · confidence medium
The law is well established that the statute of limitations for tax evasion runs from “the day of the last act of evasion.” United States v. DiPetto, 936 F.2d 96, 98 (2d Cir.1991) (emphasis added).
discussed Cited as authority (rule) United States v. Araujo
9th Cir. · 2002 · confidence medium
See, e.g., Spies v. United States, 317 U.S. 492, 499 , 63 S.Ct. 364 , 87 L.Ed. 418 (1943) (listing examples of what constitutes a willful attempt to evade tax); United States v. McGill, 964 F.2d 222, 233 (3d Cir.1992) (hiding money from IRS by depositing money in spouse’s account and office expense account are affirmative acts of tax evasion); United States v. Robinson, 974 F.2d 575, 578 (5th Cir.1992) (filing unsigned tax returns constitutes an affirmative act); United States v. Daniel, 956 F.2d 540, 542-543 (6th Cir.1992) (failing to file tax returns while dealing almost exclusively in cas…
discussed Cited as authority (rule) United States v. Nipper
N.D. Okla. · 2002 · confidence medium
See also United States v. Shorter, 608 F.Supp. 871, 874-75 (D.D.C.1985); United States v. Mousley, 194 F.Supp. 119, 119-120 (E.D.Pa.1961); United States v. DiPetto, 936 F.2d 96, 98 (2nd Cir.1991); and United States v. Hunerlach, 197 F.3d 1059, 1064-65 (11th Cir.1999).
cited Cited as authority (rule) United States v. Ronald S. Carlson
9th Cir. · 2000 · confidence medium
See e.g., United States v. Payne, 978 F.2d 1177, 1179 (10th Cir.1992); United States v. DiPetto, 936 F.2d 96, 98 (2d Cir.1991); United States v. Williams, 928 F.2d 145, 149 (5th Cir.1991).
discussed Cited as authority (rule) United States v. Julius Klausner (2×)
2d Cir. · 1996 · confidence medium
In order for a person to be convicted of attempted income tax evasion, the government must prove three elements: “(1) willfulness; (2) the existence of a tax deficiency; and (3) an affirmative act constituting the evasion or attempted evasion of the tax.” United States v. DiPetto, 936 F.2d 96, 97 (2d Cir.) (quotation omitted), cert. denied, 502 U.S. 866 , 112 S.Ct. 193 , 116 L.Ed.2d 153 (1991).
cited Cited "see" United States v. Josephberg
S.D.N.Y. · 2005 · signal: see · confidence high
See United States v. DiPetto, 936 F.2d 96, 98 (2nd Cir.1991).
discussed Cited "see" United States v. James C. Payne
10th Cir. · 1992 · signal: see · confidence high
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, — U.S. —, 112 S.Ct. 193 , 116 L.Ed.2d 153 (1991).
discussed Cited "see, e.g." United States v. Swanson
4th Cir. · 1997 · signal: see also · confidence medium
See United States v. Ferris, 807 F.2d 269, 271 (1st Cir. 1986) (finding that for the similar violation of tax evasion under 26 U.S.C. § 7201 , "it is the date of the latest act of evasion . . . that triggers the statute of limitations."); see also United States v. DiPetto, 936 F.2d 96, 98 (2d Cir. 1991) (concluding that "a section 7201 prosecution involving the failure to file income taxes is timely if commenced within six years of the day of the last act of eva- sion."); United States v. Williams, 928 F.2d 145, 149 (5th Cir. 1991) (same).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
John J. DiPETTO and Michele DiPetto, Defendants-Appellants
1647, Docket 90-1681.
Court of Appeals for the Second Circuit.
Jun 18, 1991.
936 F.2d 96
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.
Van Graafeiland, Meskill, McLaughlin.
Cited by 13 opinions  |  Published
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, /., 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. § 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 government. Finally, the record supports the finding that the DiPettos acted willfully in an attempt to avoid the income taxes. Thus, all elements of income tax evasion,[*98] 26 U.S.C. § 7201, were satisfied. See San sone, 380 U.S. at 351, 85 S.Ct. at 1010.

We next focus our attention on the DiPettos’ contention that the statute of limitations had expired with respect to those charges arising from the false W-4s filed in 1983. We reject this claim as well.

The Supreme Court has stated that the statute of limitations period does not begin to run until the underlying crime has been committed. United States v. Habig, 390 U.S. 222, 225, 88 S.Ct. 926, 928-29, 19 L.Ed.2d 1055 (1968). The DiPettos violated 26 U.S.C. § 7201 by attempting to mislead or to conceal with respect to their tax liability and then willfully failing to file a tax return. Both elements were required to satisfy section 7201. In view of Habig we conclude that the statute of limitations did not begin to run until both of these requirements were met. Thus, the limitations period began on the day on which the tax returns were due. At that point both elements of a section 7201 violation had been established. The false W-4s had previously been filed and there existed a substantial tax deficiency. In reaching this conclusion we are in accord with several other courts which have held that a section 7201 prosecution involving the failure to file income taxes is timely if commenced within six years of the day of the last act of evasion, whether it is the failure to file a return or some other act in furtherance of the crime. See, e.g., Williams, 928 F.2d at 149; United States v. Ferris, 807 F.2d 269, 271 (1st Cir.1986), cert. denied, 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987) (if failure to file return is last act of evasion, the statute runs from the date the return and tax were due); United States v. Crocker, 753 F.Supp. 1209, 1214 (D.Del.1991) (in evasion action based on false W-4s and nonpayment of tax, statute begins to run from day that returns were due); United States v. Sloan, 704 F.Supp. 880, 883 (N.D.Ind.1989) (limitations period runs from date of last act of evasion, the failure to file taxes); United States v. Sherman, 426 F.Supp. 85, 89 (S.D.N.Y.1976) (completion of offense necessary to commencement of limitations period).

We have reviewed the DiPettos’ other contentions and find them to be lacking in merit.

For the foregoing reasons the judgment of conviction of the district court is affirmed.