Gerald Hickman - Page 12

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          return; and (3) that the failure was willful.  Sec. 7203;                   
          see also United States v. Ostendorff, 371 F.2d 729, 730 (4th Cir.           
          1967).  In order to establish that petitioner was required by law           
          to file a return, it must be shown that he received at least the            
          amount of gross income specified by section 6012(a).                        
          Establishing petitioner's tax liability is not an element of                
          section 7203, and consequently no specific income tax liability             
          need be determined.  See Cipparone v. Commissioner, T.C. Memo.              
          1985-234; cf. Johnson v. Commissioner, T.C. Memo. 1993-227                  
          (taxpayer precluded from disputing the amounts he received as               
          embezzlement income where he was convicted in state court of                
          "Theft in Office" and the specific amounts embezzled were, under            
          state law, essential elements of each count in the indictment).             
               Second, the fact that the District Court's order of                    
          restitution is discretionary also supports our conclusion that a            
          finding of petitioner's tax liability was not essential to the              
          District Court's judgment.  Pursuant to 18 U.S.C. section 3663              
          (1994), "The court * * * may order, in addition to or, in the               
          case of a misdemeanor, in lieu of any other penalty authorized by           
          law, that the defendant make restitution to any victim of such              
          offense".  (Emphasis added.)                                                
               For the aforementioned reasons, we find that an adjudication           
          of petitioner's tax liability was not essential to the District             
          Court's judgment and that this precondition to the application of           





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