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When is tax evasion an aggravated felony?

San Mateo, CA |

I understand that tax evasion is considered an aggravated felony if it is more than $10,000. However, is this for a single count of tax evasion or can multiple counts of smaller amounts (e.g. $1,000-9,000) that lead to an aggregate of over $10,000 also be considered a aggravated felony?

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Attorney answers 3


According to Khalayleh v. INS, 287 F.3d 978 (10th Cir. 2002) (See link below), if there is a "single scheme to defraud" or likely in this case, to evade, it is possible that all the smaller amounts attributable to the single scheme will be aggregated to a single amount.

This content is not legal advice and it does not create an attorney client relationship. This content is provided for educational purposes only. If you need answers to specific legal problems, please engage an attorney. This content is not intended or written to be used, and cannot be used, for the purpose of avoiding federal tax penalties.


I agree with Attorney Smith.

In Kawishima v. Holder, where the US Supreme court decided on 2/21/2012 that tax fraud or evasion could be considered an aggravated felony, set forth that the clause defining aggravated felony "involves fraud or deceit in which the loss to the victim or victims exceeds $10,000" includes tax evasion if it resulted in a loss in revenue to the Government of more than $10,000. While I have not found a case specifically dealing with tax evasion since that case, I believe the reasoning in decision provided to you by Attorney Smith would be applied to tax evasion cases to aggregate all the smaller amounts if they are part of a single scheme to defraud.


You are correct that immigration status is affected by conviction of an “aggravated felony,” which mandates deportation. 8 U.S.C. § 1101(a)(43)(M) defines an aggravated felony to include, among many other offenses, an offense that:

(i) involves fraud or deceit in which the loss to the victim or victims exceeds $10,000; or

(ii) is described in § 7201 of the Internal Revenue Code of 1986 (related to tax evasion) in which the revenue loss to the Government exceeds $10,000.

Subpart (ii) of § 1101(a)(43)(M) thus makes clear that a conviction under § 7201 (tax evasion) is an aggravated felony. The question arises, however, whether other tax crimes that, in general parlance, might be viewed to include "fraud or deceit" are covered in subpart (i). After conflict among the circuits, in Kawashima v. Holder, 132 S. Ct. 1166, 1172, 182 L. Ed. 2d 1 (2012), the Supreme Court resolved the issue by holding that other tax crimes can be included in subpart (i), specifically § 7206(1), willfully subscribing to a materially false tax return, and § 7206(2), aiding or assisting in the preparation or presentation of a materially false tax return.

The key conflicting decision in the courts of appeals was Lee v. Ashcroft, 368 F.3d 218 (3d Cir. 2004). The gravamen of the Lee holding was that, if subpart (i) includes tax crimes, then there was no need for subpart (ii) which was a tax crime that necessarily (at least in most applications) would involve fraud and deceit. The inclusion of subpart (ii) created an inference that other tax crimes was not includable in subpart (i). In Kawashima, rejecting that analysis, the Supreme Court held that a straight-forward reading of (i) would include tax crimes other than evasion so long as an element of the crime could be fairly interpreted to include fraud or deceit.

As another attorney stated, the courts quite likely would accumulate the total losses related to individual counts of tax evasion or tax fraud in determining whether the $10,000 threshhold has been met for the aggravated felonies specified by 8 U.S.C. §§ 1101(a)(43)(M)(i) and (ii), especially if the separate counts are part of a common course of conduct.

In addition, under the Federal Sentencing Guidelines, the tax loss for sentencing (and restitution) purposes is equal to the tax loss associated with not only the offense(s) of conviction but also the loss associated with any uncharged "relevant conduct." U.S.S.G. Sec. 1B1.3(a)(2) (such relevant conduct includes "all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction"). Further, Application Note 2 to the sentencing guideline specifically applicable to tax crimes, U.S.S.G. Sec. 2T1.1, provides in pertinent part:

In determining the total tax loss attributable to the offense (see §1B1.3(a)(2)), all conduct violating the tax laws should be considered as part of the same course of conduct or common scheme or plan unless the evidence demonstrates that the conduct is clearly unrelated. The following examples are illustrative of conduct that is part of the same course of conduct or common scheme or plan: (a) there is a continuing pattern of violations of the tax laws by the defendant; (b) the defendant uses a consistent method to evade or camouflage income, e.g., backdating documents or using off-shore accounts; (c) the violations involve the same or a related series of transactions; (d) the violation in each instance involves a false or inflated claim of a similar deduction or credit; and (e) the violation in each instance involves a failure to report or an understatement of a specific source of income, e.g., interest from savings accounts or income from a particular business activity. These examples are not intended to be exhaustive.").

In determining the tax loss for meeting the $10,000 requirement for an aggravated felony, it is quite likely that the court in a deportation case would use that same method.

The answer to this question does not establish an attorney-client relationship. Moreover, this attorney is licensed to practiced law ONLY in the State of California. Answers to questions from users in other jurisdictions or states are meant to provide only general information. Users should contact a local attorney in their jurisdiction or state to address their specific tax issue.

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