THIS MEMORANDUM WAS PREPARED AND WRITTEN FOR ONE SPECIFIC
CASE AND MAY NOT APPLY TO OTHERS.
IT IS NOT OFFERED AS ADVICE NOR AS A LEGAL OPINION RELATIVE TO
ANYONE OTHER THAN THE PARTY IN THIS CASE AND FOR THE ISSUES
PRESENTED BY THIS PARTICULAR PROCEEDING.
THE READER SHOULD OBTAIN INDEPENDENT ADVICE FROM A LICENSED
ATTORNEY BEFORE RELYING ON THE APPLICABILITY OF ANY
AUTHORITIES CITED HEREIN INSOFAR AS THEY MAY OR MAY NOT APPLY
TO THE READER.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
On October 25, 2006, the government filed herein an indictment charging defendant, TOMMY K. CRYER, hereinafter "Cryer", with two counts of tax evasion, alleging that during the years 2000 and 2001 Cryer had received taxable income but had knowingly and willfully failed to timely file tax returns for said years and that, as an "affirmative act" of evasion Cryer had failed to file tax returns for the Tommy K. Cryer Trust, which, the indictment claims, had received taxable income, thereby (presumably) concealing income and misleading the Internal Revenue Service, hereinafter IRS, into believing that Cryer had no income for the years 2000 and 2001, all in violation of 26 U.S.C. \u00a7 7201.
Defendant now files this motion pursuant to Rule 12(b) to dismiss both counts of the indictment, with prejudice, on the basis that as a matter of law revenues received by him are not taxed or taxable under the provisions of the Income Tax laws and regulations
thereunder promulgated, nor are any revenues received by him within the powers of the federal government to tax and that the revenues received by him are exempt from taxation by excise under the Constitution of the United States and that, therefore, an essential element of the charges, a "tax due and owing", is absent in this case.
There are three essential elements to the crime of tax evasion, namely (1) willfulness; (2) existence of a tax deficiency; and (3) an affirmative act constituting an evasion or attempted evasion of the tax.Sansone v. United States, 380 U.S. 343, at 351, 85 S.Ct. 1004, at 1010 (1965); United States v. Bishop, 264 F.3d 535 (5th Cir. 2001);United
Reserving all rights and objections to the indictment previously raised, it is respectfully submitted that there is, as a matter of law, no tax deficiency due and owing by defendant.
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