## Facts

- Steven Frank Boitano, an accountant, did not file personal income tax returns from 1991–2007.
- In 2009, during an IRS enforcement examination concerning unfiled returns (2001–2007), Boitano delivered signed returns for 2001–2003 to an IRS agent.
- The 2001–2003 returns claimed estimated tax payments ($26,000; $38,000; $57,000) for which the IRS had no record.
- The agent stamped the returns with a compliance field stamp and provided Boitano copies of the first pages, but retained the returns and did not forward them to the IRS service center for processing after noticing the discrepancy.
- Boitano was charged with three misdemeanor counts for failure to file returns (26 U.S.C. § 7203) and three felony counts for making and subscribing false returns (26 U.S.C. § 7206(1)).
- Boitano pled guilty to the misdemeanors and proceeded to trial on the felonies.
- At trial, the government treated “filing” as an element of the § 7206(1) counts and argued Boitano filed by handing the returns to the agent; the jury was instructed accordingly and convicted on all felony counts.

## Issues

1. Whether, for a § 7206(1) prosecution based on an income tax return, the government must prove the defendant filed the return.
2. Whether delivering signed returns to an IRS enforcement agent during an examination constitutes “filing” when the agent does not forward the returns for IRS processing.

## Decision

- The Ninth Circuit reversed Boitano’s three felony convictions under 26 U.S.C. § 7206(1).
- The court held that, for charges premised on a false income tax return, filing is an element of § 7206(1) in the circuit.
- The court held Boitano did not file the 2001–2003 returns by handing them to the agent where the returns were retained and not processed as filed returns.
- The misdemeanor convictions under 26 U.S.C. § 7203 were unaffected.

## Legal Principles

- In the Ninth Circuit, when a § 7206(1) count is based on an income tax return, the government must prove the return was filed.
- “Making and subscribing” a return under penalty of perjury is not, by itself, sufficient to establish the filing element for a false-return prosecution.
- Delivery of a delinquent return to an IRS enforcement agent does not constitute filing when the return is not forwarded to the designated IRS processing channels and is not accepted for processing as a filed return.
- A party cannot avoid binding circuit precedent by recasting prior holdings as dictum, and a post-trial change in prosecutorial theory cannot salvage a conviction inconsistent with controlling circuit law and the elements tried to the jury.

## Conclusion

The Ninth Circuit reversed Boitano’s § 7206(1) convictions because, under circuit precedent, filing is an element for false-return charges based on income tax returns, and the government failed to prove the returns were filed where they were merely given to an IRS agent who did not submit them for processing.


United States v. Boitano, 796 F.3d 1160 (9th Cir. 2015)