17.00 26 U.S.C. § 7212(a) "OMNIBUS CLAUSE"

Updated May 2001

17.01 STATUTORY LANGUAGE

17.02 GENERALLY

17.03 ELEMENTS OF THE OMNIBUS CLAUSE

17.04 IN ANY WAY CORRUPTLY

17.05 ENDEAVORS

17.06 TO OBSTRUCT OR IMPEDE THE DUE ADMINISTRATION 

OF THE INTERNAL REVENUE LAWS

17.07 VENUE

17.08 STATUTE OF LIMITATIONS

17.09 SENTENCING GUIDELINES

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       17.01  STATUTORY LANGUAGE: 26 U.S.C. § 7212(a)"OMNIBUS CLAUSE"

      §7212. Attempts to interfere with administration

            of the Internal Revenue Laws.

      (a) Corrupt or forcible interference.

            Whoever corruptly or by force or threats of force (including any

      threatening letter or communication) endeavors to intimidate or impede any

      officer or employee of the 

United States

 acting in an official capacity

      under this title, or in any other way corruptly or by force or threat of

      force (including any threatening letter or communication) obstructs or

      impedes, or endeavors to obstruct or impede the due administration of this

      title, shall, upon conviction thereof, be fined* not more than $5,000 or

      imprisoned not more than three years or both.

            *As to offenses committed after December 31, 1984, the Criminal Fine

      Enforcement Act of 1984 (P.L. 98-596) enacted 18 U.S.C. § 3623 [FN1]

      which increased the maximum permissible fines for both misdemeanors and

      felonies.  For the felony offenses set forth in section 7212, the maximum

      permissible fine for offenses committed after December 31, 1984, is at

      least $250,000 for individuals and $500,000 for corporations. 

      Alternatively, if any person derives pecuniary gain from the offense, or

      if the offense results in pecuniary loss to a person other than the

      defendant, the defendant may be fined not more than the greater of twice

      the gross gain or twice the gross loss.

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                        17.02  GENERALLY

      Section 7212(a) of Title 26 contains two clauses.  The first clause

prohibits threats or forcible endeavors designed to interfere with 

United States

agents acting pursuant to Title 26.  See 

United States

 v.

Przybyla, 737 F.2d 828 (9th Cir. 1984).  The second more general clause,

known as the omnibus clause, prohibits any act that either corruptly obstructs

or  impedes, or endeavors to obstruct or impede, the due administration of the

Internal Revenue Code.  

United States

 v. Bostian, 59 F.3d 474, 477

(4th Cir. 1995);  

United States

 v. Popkin, 943 F.2d 1535, 1539

(11th Cir. 1991);  

United States

 v. Williams, 644 F.2d 696, 699

(8th Cir. 1981).

      The Tax Division's policy on the omnibus provision of section 7212(a) is

set out in Tax Division Directive No. 77 (1989).  That directive states: 

      In general, the use of the "omnibus" provision of Section 7212(a) should

      be reserved for conduct occurring after a tax return has been filed --

      typically conduct designed to impede or obstruct an audit or criminal tax

      investigation, when 18 U.S.C. 371 charges are unavailable due to

      insufficient evidence of conspiracy.  However, this charge might also be

      appropriate when directed at parties who engage in large-scale obstructive

      conduct involving actual or potential tax returns of third parties.

(See Section 3.00, supra).  Use of the omnibus clause is,

nevertheless, not limited to conduct occurring after the return has been filed. 

"Continually assisting taxpayers in the filing of false tax returns or engaging

in other conduct designed to make audits difficult; and other numerous

large-scale violations of 26 U.S.C. 7206(2) or 18 U.S.C. 287  . . . are examples

of situations when Section 7212(a) charges might be appropriate."  Directive 77,

p.1.   Note, also, Tax Division Directive No. 115 (1999) does not delegate

authority to the Chief of a Criminal Section regarding prosecutions pursuant to

section 7212(a).  (Directive 115, p.2, para. 3(a.)).   

      The Eleventh Circuit, in Popkin, discussed the value of

section 7212(a):

      In a system of taxation such as ours which relies principally upon self

      reporting, it is necessary to have in place a comprehensive statute in

      order to prevent taxpayers and their helpers from gaining unlawful

      benefits by employing that "variety of corrupt methods that is limited

      only by the imagination of the criminally inclined." 

      Martin, 747 F.2d at 1409.  We believe that § 7212(a) is

      such a statute . . . . 

Popkin, 943 F.2d at 1540.

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              17.03  ELEMENTS OF THE OMNIBUS CLAUSE

      To establish a section 7212(a) omnibus clause violation, the government

must prove the following three essential elements beyond a reasonable doubt: 

that the defendant  (1)  in any way corruptly (2) endeavored (3) to obstruct or

impede the due administration of the Internal Revenue Code.  

United States

v. Williams, 644 F.2d 696, 699 (8th Cir. 1981).   Most "omnibus clause"

cases are charged as corrupt endeavors. [FN2]

      The Sixth Circuit held that the obstruction of the due administration of

justice requires  "some pending IRS action of which the defendant was aware." 

United States v. Kassouf, 144 F.3d 952, 957 (6th Cir. 1998), citing

United States
 v. Aguilar, 515 

U.S.

 593, 599 (1995).   The 

Kassouf Court

 went on to state that the pending IRS action "may

include, but is not limited to, subpoenas, audits or criminal tax

investigations."  United States v. Kassouf, 144 F.3d at 957 n.2. 

However, in a later decision, the Sixth Circuit limited its holding in

Kassouf  "to its precise holding and facts" and upheld an omnibus clause

conviction involving the filing of false 1099 and 1096 Forms although there was

no pending IRS action.  

United States

 v. Bowman, 173 F.3d 595, 600

(6th Cir. 1999).        

      The Second Circuit rejected a narrow interpretation of §7212 

which would limit its application to force or  threat and held that the 

omnibus clause is not so limited, and  renders criminal "any other" action 

which serves to obstruct or impede the due  administration of  the revenue 

laws. 

United States

 v. Kelly, 147 F.3d 172, 175 (2nd. Cir. 1998).

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                   17.04  IN ANY WAY CORRUPTLY

      "Corruptly" in the context of section 7212(a) means to act with the intent

to secure an unlawful advantage or benefit either for oneself or another. 

United States

 v. Winchell, 129 F.3d 1093, 1098   (10th Cir. 1997); 

United States

 v. Reeves (Reeves I), 752 F.2d 995, 998 (5th Cir.

1985) (cited with approval in United States  v. Popkin, 943 F.2d

1535, 1540 (11th Cir. 1991)).  The Fifth Circuit in Reeves I

stated:

      It is unlikely that 'corruptly' merely means 'intentionally' or 'with

      improper motive, or bad or evil purpose.'  First, the word 'endeavor'

      already carries the requirement of intent; one cannot 'endeavor' what one

      does not 'intend.'  Similarly, the mere purpose of obstructing the tax

      laws is 'improper' and 'bad'; therefore, to interpret 'corruptly' to mean

      either 'intentionally' or 'with an improper motive or bad or evil purpose'

      is to render 'corruptly' redundant.

Reeves I, 752 F.2d at 998.  See also United States v. Valenti, 

121 F.3d 327, 332 (7th Cir. 1997); United States v. Hanson, 2 F.3d 

942, 947-948 (9th Cir. 1993);  United States v. Dykstra, 991 F.2d 

450, 453 (8th Cir. 1993); United States v. Yagow, 953 F.2d 423, 427 

(8th Cir. 1992).

      A broad reading of the term "corruptly" is further dictated by its

modifying phrase "in any other way".  See United States v.

Mitchell, 985 F.2d 1275, 1279 (4th Cir. 1993) (the language of the clause

encourages a broad construction and should be read to include the full scope of

conduct that such a construction commands).  "Section 7212(a) is directed at

efforts to bring about a particular advantage such as impeding collection of

one's taxes, taxes of another, or the auditing of one's or another's tax

records," Reeves I, 752 F.2d at 998, or financial gain,

Dykstra, 991 F.2d at 453.  Use of the word "corruptly" does not

limit the reach of the statute to some action taken against another person as the

object of the action.  Mitchell, 985 F.2d at 1277-78.   The acts

themselves need not be illegal, as long as the defendant commits them to secure

an unlawful benefit for himself or others. 

United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997) citing

Bostian, 59 F.3d at 479.

      Examples of corrupt endeavors within the meaning of Section 7212(a)

include:

      *     Statements, whether threats or not, designed to convince witnesses

            not to testify. United States v. Valenti, 121 F.3d

            327, 332 (7th Cir. 1997).

      *     Attempting to interfere with the auction of property to pay tax debt

            by filing a 

      lis pendens action  and affixing an enlarged copy of that document to a

      sign advertising the auction.  United States v. Bostian, 59

      F.3d 474, 477 (4th Cir. 1995).

      *     Backdating documents, concealing assets, and hiding corporate. 

            United States v. Wilson, 118 F.3d 228, 234-35 (4th

            Cir. 1997); see also United States v. Madoch,

            108 F.3d 761 (7th Cir. 1997) (CPA executed bogus refund scheme);

            United States v. Workinger, 90 F.3d 1409 (9th Cir.

            1996) (dentist engaged in elaborate scheme to conceal income and

            assets).

      In Dykstra, the defendant retaliated against federal officials 

involved in an IRS collection action by sending the officials IRS Forms 1099 

indicating that the defendant had paid the officials nonemployee 

compensation.  The defendant then notified the IRS that the officials failed 

to pay taxes on the nonemployee compensation and requested a reward for 

supplying the information.  The court held that the defendant acted 

corruptly because he attempted to secure an "unwarranted financial gain for 

himself," namely to prevent his home from being seized by the IRS to satisfy 

his tax liability and to obtain rewards for reporting alleged tax 

violations.  Dykstra, 991 F.2d at 453.  See also United 

States v. Winchell, 129 F.3d 1093 (10th Cir. 1997) (1099 scheme similar 

to Dykstra); United States v. Kuball, 976 F.2d 529 (9th 

Cir. 1992) (defendant acted corruptly when, in order to obtain a substantial 

tax refund, he sent false Forms 1099 and threatening letters to IRS 

employees). The Winchell court reasoned that " (t)he fact that the 

taxpayer may claim sums which are rationally "preposterous" does not obviate 

a corrupt intent. Winchell, 129 F.3d 1093, 1099 (10th Cir. 1997), 

citing Kuball, 976 F.2d at 530-31, and Yagow, 953 F.2d at 

425-27.

      The benefit sought by the defendant need not be financial for 

the "corruptly" element to be satisfied.  In United States v. Yagow, 

953 F.2d 423, 427 (8th Cir. 1992), the defendant engaged in a Form 1099 

scheme directed at over 100 individuals involved in the liquidation of his 

farm and his son's prosecution on state alcohol possession charges.  Relying 

on Reeves I, 752 F.2d 995, Yagow argued that the prosecution had 

failed to prove that he acted "corruptly," because there was no evidence 

that he had sought financial advantage from his Form 1099 scheme.  The 

Eighth Circuit held that proof that Yagow acted to get his property back or 

receive money he claimed was owed to him was sufficient to prove he acted 

"corruptly," and stated:

      While we are inclined after examining Reeves to reject

      Yagow's assertion that the term corruptly is limited to situations in

      which the defendant wrongfully sought or gained a financial advantage, we

      need not decide this issue, as ample evidence was presented to show that

      Yagow acted with the motive of securing financial gain.

Yagow, 953 F.2d at 427.  The Yagow court relied on

the Fifth Circuit's opinions in Reeves I and United States

v. Reeves (Reeves II), 782 F.2d 1323, 1325-26 (5th Cir. 1986), which

implies that a financial motive is not the only benefit which satisfies the

"corruptly" element of section 7212(a).  The court in Reeves II

noted: 

      [o]n remand, the court found that Reeves had acted with the intention of

      securing benefits to himself insofar as the filing of the lien on . . .

      [an IRS agent's] property would divert his time and attention from

      pursuing tax investigations against Reeves and others.  The district court

      concluded as a matter of law that Reeves had violated  § 7212(a).

Reeves II, 782 F.2d at 1326.  The Fifth Circuit held that the

inference that the defendant acted with the intent of diverting the agent's

energies from the investigation was reasonable and affirmed Reeves' conviction. 

Reeves II, 782 F.2d at 1326.  

      Mere "harassment" of an agent, if it is not done to obtain an undue

advantage, may not rise to the level of a section 7212(a) violation.  The court

in Reeves I stated:

      [T]here is no reason to presume that every annoyance or impeding of

      an IRS agent is done per se "corruptly."  A disgruntled taxpayer

      may annoy a revenue agent with no intent to gain any advantage or benefit

      other than the satisfaction of annoying the agent.  Such actions by

      taxpayers are not to be condoned, but neither are they "corrupt" under

      Section 7212(a).

Reeves I, 752 F.2d at 999 (emphasis in original).

      Conduct can be corrupt under the provisions of the omnibus clause even if

it is not directed at individual officers or employees of the Internal Revenue

Service.  The omnibus clause of  §7212(a) "conspicuously omits the

requirement that conduct be directed at 'an officer or employee of the United

States Government.'"  Dykstra, 991 F.2d at 452 (quoting

Popkin, 943 F.2d at 1539).  Two of the many victims of the Form

1099 scheme in Dykstra were not government agents.  One was the

former employer of Dykstra's wife and the other was a bank employee who released

Dykstra's wife's bank funds to the IRS.  Dykstra, 991 F.2d at

451-52.  The Eighth Circuit held that the section 7212(a) charge properly

included the defendant's actions against the nongovernment victims. 

Dykstra, 991 F.2d at 452.

      "Misrepresentation and fraud . . . are paradigm examples of activities done

with an intent to gain an improper benefit or advantage."  United States

v. Mitchell, 985 F.2d 1275, 1278 (4th Cir. 1993).  In

Mitchell, the District Court had dismissed a section 7212(a) charge

where the defendant, a U.S. Fish and Wildlife Service employee, applied for tax

exempt status for his consulting business, American Ecological Union (AEU). 

Mitchell, 985 F.2d at 1276.  The government alleged the application

falsely stated that AEU's purpose was to promote ecological research, and that

AEU actually arranged big-game hunting trips in Pakistan and China, for which AEU

was paid tax deductible "contributions."  Mitchell, 985 F.2d at

1277.  In reversing the dismissal, the Fourth Circuit concluded that

"fraudulently representing to the IRS that his organization was involved in tax

exempt activities, using his tax exempt status to solicit contributions that were

not used for tax exempt purposes, and inducing hunters to file false returns" fit

"neatly" within the Reeves I definition of "corruptly." 

Mitchell, 985 F.2d at 1278.

      An endeavor may be corrupt even when it involves means that are not illegal

in themselves.  Mitchell, 985 F.2d at 1279 (and cases cited);

Popkin, 943 F.2d at 1537 (attorney acted corruptly where he created

a corporation "expressly for the purpose of enabling the defendant to disguise

the character of illegally earned income and repatriate it from a foreign bank").

      The Second Circuit rejected a request by the defendant for a

Cheek willfulness instruction since section 7212(a) does not

include that term and the district court's instructions as to "corruptly" and

"endeavors" were as comprehensive and accurate as if the word "willfully" were

incorporated.  United States v. Kelly, 147 F.3d 172, 177 (2nd Cir.

1998). 

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                        17.05  ENDEAVORS

      The second element of the omnibus clause of section 7212(a) is 

"endeavors." [FN3]  The courts have looked to case law interpreting similar 

language in the obstruction of justice statutes, 18 U.S.C. §§ 1503 

and 1505, to aid in defining the term for purposes of section 7212(a).  

United States v. Martin, 747 F.2d 1404, 1409 (11th Cir. 1984);  

United States v. Williams, 644 F.2d 696, 699 n.11 & 700 (8th Cir. 1981).  

      Relying on the Supreme Court's definition of "endeavor" in Osborn v.

United States, 385 U.S. 323, 333 (1966), the Eleventh Circuit in

Martin defined "endeavor" as "any effort . . . to do or accomplish

the evil purpose that section was intended to prevent."  Martin,

747 F.2d at 1409.  The court in United States v. Dykstra, 991 F.2d

450 (8th Cir. 1993), relying on another obstruction case, United States v.

Silverman, 745 F.2d 1386, 1393, 1396 n.12 (11th Cir. 1984), defined

"endeavor" as follows:

      [T]o effectuate an arrangement or to try to do something, the natural and

      probable consequences of which is to obstruct or impede the due

      administration of the Internal Revenue Laws.

      The manner by which a defendant can "endeavor" to impede the due

administration of the internal revenue laws is unlimited.  As noted above, the

omnibus clause contains broad language that prohibits conduct that impedes the

due administration of the internal revenue laws "in any way."  

      The most common way to endeavor to impede or obstruct the due

administration of the tax code is to take direct action against officials

involved in investigating or prosecuting tax charges.  In United States v.

Martin, 747 F.2d 1404 (11th Cir. 1984), a taxpayer knowingly filed a

false complaint with the IRS alleging agent misconduct during an audit. 

Martin, 747 F.2d at 1408, 1410.  The Eleventh Circuit affirmed the

defendant's section 7212(a) conviction, holding that the filing of a false

complaint against an IRS agent was an endeavor to impede the due administration

of the internal revenue laws.  Martin, 747 F.2d at 1409-10.  But

see United States v. Hylton, 710 F.2d 1106 (5th Cir. 1983),

aff'g, 558 F. Supp. 872 (S.D. Tex. 1982) (section 7212(a) conviction can

not be based on nonfraudulent complaint against IRS agents).      

      In Williams, 644 F.2d at 700-01 & n. 11, the Eighth Circuit

affirmed the conviction of defendant Terrell, holding that "conduct assisting the

preparation and filing of false W-4 forms constitutes an endeavor to impede or

obstruct the due administration of the Internal Revenue Code.  We conclude that

section 7212's omnibus clause plainly comprehends this conduct." 

Williams, 644 F.2d at 701. 

      The Form 1099 scheme previously described in SectionSection 17.04, is a method

frequently used to impede the administration of the internal revenue laws.  In

United States v. Yagow, 953 F.2d 427 (8th Cir. 1992), a typical

Form 1099 scheme case, the defendant sent bills and Forms 1099-MISC to several

officials involved in the liquidation of his farm which falsely claimed that he

had paid the officials nonemployee compensation.  The defendant also filed the

Forms 1099 with the IRS.  The court found that the Form 1099 scheme was an

attempt to impede the administration of the tax laws.  Yagow,

953 F.2d at 427.  See also Dykstra, 991 F.2d at 453;

United States v. Rosnow, 977 F.2d 399, 410-11 (8th Cir. 1992);

United States v. Kuball, 976 F.2d 529, 532 (9th Cir. 1992).

      A number of other activities also have been found to violate the omnibus

clause.  United States v. Higgins, 987 F.2d 543, 544 (8th Cir.

1993) (sending false bills to numerous individuals, claiming the billed amount

as forgiven debt on IRS forms and requesting rewards for reporting the debtors

to the Internal Revenue Service);  United States v. Shriver,

967 F.2d 572, 573-74 (11th Cir. 1992) (transfer of real estate into spouse's name

and filing of an altered Lien Notice in attempt to release IRS lien); 

United States v. I.H. Hammerman, 528 F.2d 326, 328 (4th Cir. 1975)

(defendant pled guilty to section 7212(a) charge based on his acting as "bagman"

for Vice President Spiro Agnew in tax evasion scheme).

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            17.06 TO OBSTRUCT OR IMPEDE THE DUE ADMINISTRATION

                  OF THE INTERNAL REVENUE LAWS

      The omnibus clause is aimed at prohibiting efforts to impede the collection

of one's taxes, the taxes of another, or the auditing of one's or another's tax

record.  United States v. Kuball, 976 F.2d 528, 531 (9th Cir.

1992).

      Although it is necessary in most omnibus clause cases to prove that a

defendant attempted to impede or obstruct the administration of the internal

revenue laws,  [FN4] there is no requirement that a defendant's actions have an

adverse affect on the government's investigation.  United States v.

Rosnow, 977 F.2d 399 (8th Cir. 1992).  In Rosnow, the

defendants, who were being investigated for various internal revenue violations,

filed false Forms 1099 against IRS agents and other law enforcement officials in

an attempt to impede the investigations.  Rosnow, 977 F.2d at 403. 

The defendants claimed that they could not be convicted under the omnibus clause

because they did not successfully impede the IRS investigation.  The Eighth

Circuit found that filing false Forms 1099 was an attempt to impede the

investigation which was punishable under the omnibus clause even though the

attempt was unsuccessful.  Rosnow, 977 F.2d at 410.  

      There is also no requirement that a defendant attempt to impede the IRS on

his own behalf; impeding the IRS on another's behalf violates the omnibus clause. 

See United States v. Popkin, 943 F.2d 1535, 1541 (11th Cir

1991) (an attorney can be prosecuted under the omnibus clause where he creates

a corporation intended to assist a client to avoid reporting taxable income from

drug transactions).

      Action need not be taken against a government agent to constitute a

violation of the omnibus clause.  A violation occurs whenever a defendant intends

to impede the administration of the tax laws.  United States v.

Mitchell, 985 F.2d 1275, 1277 (4th Cir. 1993).  In

Mitchell, the court held that the omnibus clause prohibits attempts

to violate the due administration of the internal revenue laws and should be read

broadly to include behavior like the defendant's that was not directed at IRS

officials. 

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                          17.07  VENUE

      Venue for a section 7212 prosecution lies in the district where the

defendant committed the corrupt act(s) constituting an endeavor to impede the

administration of the Internal Revenue Code.  See 18 U.S.C. § 3237. 

See Section 6.00, supra.

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                  17.08  STATUTE OF LIMITATIONS

      Section 6531 of the Internal Revenue Code contains the statute of

limitations provisions for  tax crimes including violations of section 7212(a). 

Section 6531(6) provides a six-year statute of limitations for  "the offense

described in section 7212(a) (relating to intimidation of officers of the United

States)."  United States v. Workinger, 90 F.3d 1409, 1413-14 (9th

Cir. 1996).  In Workinger, the defense argued that Section 6531(6)

does not apply to the "omnibus clause" because the parenthetical language limits

the scope of the six-year limitations exception to those Section 7212(a) offenses

involving intimidation of officers and employees of the United States. 

Workinger, 90 F.3d at 1413.   The Ninth Circuit rejected this

argument and held that the parenthetical language of Section 6531(6) is

"descriptive, and not limiting."  Workinger, 90 F.3d at 1414. 

See also United States v. Kelly, 147 F.3d 172, 177 (2nd Cir.

1998);  United States v. Wilson, 118 F.3d 228, 236 (4th Cir. 1997)

(statute of limitations for Section 7212(a) is six years, citing 6531(6)).  

Prior to these decisions, the government had argued that Section 6531(1) which

contains broad language similar to that which appears in the omnibus clause

applied. 

      Accordingly, the statute of limitations for an omnibus clause offense will

run six years from the last act which constitutes a corrupt endeavor to impede

and impair the due administration of the tax code.  26 U.S.C. § 6531(6). 

See Section 7.00, .

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                  17.09  SENTENCING GUIDELINES

      The most appropriate sentencing guideline to be applied to section 7212(a)

violations is the general obstruction of justice guideline, USSG §2J1.2. 

United States v. Dykstra, 991 F.2d 450, 454 (8th Cir. 1993). 

Noting that "the language and structure of § 7212 track part of certain

federal obstruction of justice statutes" and that the courts have used those

statutes to interpret section 7212(a), the Eighth Circuit in

Dykstra approved the application of the general obstruction of

justice guideline, USSG §2J1.2, in sentencing section 7212(a) violations. 

Dykstra, 991 F.2d at 454 (quoting United States v.

Williams, 644 F.2d 696, 699 n.11 (8th Cir. 1981)), see also

United States v. Koff, 43 F.3d 417, 419 (9th Cir. 1994); 

United States v. Van Krieken, 39 F.3d 227, 231 (9th Cir. 1994)

(sentencing court found USSG §2J1.2 applicable to section 7212).    

      Courts have also sentenced section 7212(a) violations under Part 2T,

Offenses Involving Taxation, of the sentencing guidelines.  In United

States v. Hanson, 2 F.3d 942 (9th Cir. 1993), the Ninth Circuit held that

the district court's application of § 2T1.9, Conspiracy to Impair, Impede,

or Defeat Tax, was improper because the evidence indicated that Hanson acted

alone in his Form 1099 scheme.  The Ninth Circuit "conclude[d] that § 2T1.5,

Fraudulent Return, Statements, or Other Documents, more closely fits Hanson's

conduct."  Hanson, 2 F.3d at 947.  In a factually similar case,

United States v. Krause, 786 F. Supp. 1151 (E.D.N.Y.),

aff'd, 978 F.2d 906 (2d Cir. 1992), the court considered which subsection

of section 2T1.3(a), Fraud and False Statements Under Penalty of Perjury, should

be applied in sentencing the defendant's section 7212(a) conviction.  Section

2T1.3(a) provides:  

      (a)   Base Offense Level:

      (1)   Level from §2T4.1 (Tax Table) corresponding to the tax loss; if

            the offense was committed in order to facilitate evasion of a tax,

            or

      (2)   6, otherwise.

USSG §2T1.3(a).  The court held that section 2T1.3(a)(2) should be applied

to the defendant's Form 1099 scheme because "the government suffered no actual

tax loss through Krause's tax protest activities.  In addition, Krause was not

charged or convicted with tax loss or tax evasion or false tax credit." 

Krause, 786 F. Supp. at 1158.

      However, the Eleventh Circuit, in United States v. Shriver,

967 F.2d 572 (11th Cir. 1992), upheld the trial court's application of sentencing

guideline § 2F1.1 Fraud and Deceit, to the defendant's section 7212(a)

violation, reasoning that the Fraud and Deceit guideline most closely tracked

Shriver's actions attempting to defeat an IRS lien.

      The November 1993 changes to the Sentencing Guidelines direct a court to

apply either the Obstruction of Justice guideline (§2J1.2) or the Tax

Evasion guideline (§2T1.1).  USSG App. A, subject, of course, to the general

provision that if the guideline section indicated for the statute of conviction

is inappropriate because of the particular conduct involved, the court should use

the guideline section most applicable to the nature of the offense conduct

charged in the count of which the defendant was convicted (USSG App A, intro.

comment.). 

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FN 1. Changed to 18 U.S.C. § 3571, commencing Nov. 1, 1986.  

FN 2. However, depending on the facts of the particular case, a defendant could

be  charged with corruptly obstructing the due administration of the Internal

Revenue Code.  In this case, the government would have to prove only two

essential elements beyond a reasonable doubt: that the defendant (1) in any way

corruptly (2) obstructed or impeded the due administration of the Internal

Revenue Code.

FN 3. But see n.2, supra.

FN 4. But see n.2, supra.