The IRS has broad power under Internal Revenue Code (IRC) § 7201 to punish anyone who “attempts in any manner to evade or defeat any tax imposed by [Title 26].”[1] IRC § 6201(a)(4)(A) grants the IRS the power to assess and collect restitution as a tax for “failure to pay any tax imposed under [Title 26]”.[2] Thus arises the question of whether a person can be liable for criminal restitution for aiding in evading someone else’s restitution imposed by Title 26 on the theory that § 7201’s prohibition on evading any tax imposed by Title 26 encompasses a broader range of taxes than one’s own.
The Tax Court has answered this question in the affirmative. In the landmark case of Bontrager v. Commissioner,[3]the Tax Court held that the interplay of these statutes allows the IRS to asses restitution against a taxpayer for another person’s tax obligations. More specifically, a taxpayer can be liable for aiding and abetting another person’s evasion of tax liability.
In Bontrager, JB was charged with and pleaded guilty to aiding and abetting the evasion of a tax assessed to his father, WB, by using his real estate business as a front to conceal WB’s assets, including income, bank accounts, and business interests.[4] As punishment, the district court ordered JB to pay restitution to the IRS of $72,710, which was 10% of WB’s restitution liability under a prior tax crime.[5] Following JB’s bankruptcy, the IRS assessed the same amount to JB as taxes.[6]
JB contested the IRS’s ability under IRC § 6201(a)(4)(A) to assess liability for part of his father’s restitution obligations to him on the grounds that the governing statute only allows the IRS to assess liability for evading one’s own tax obligations, not the obligations of others.[7] The Tax Court rejected this argument, holding instead that both § 7201 and § 6201(a)(4)(A) apply to any tax imposed under Title 26.[8] Under this expansive reading, JB clearly aided in evading a tax imposed by Title 26, even though that tax was his father’s.[9] Thus, JB’s aiding in the evasion of WB’s Title 26 tax made JB guilty under § 7201, allowing the IRS to assess the restitution due under his § 7201 conviction as a tax under § 6201(a)(4)(A).[10]
The lesson from Bontrager is clear: aiding the evasion of anyone’s Title 26 tax obligations, including restitution for failure to pay taxes that is assessed as a tax under § 6201(a)(4)(A), can lead to potential liability. Under Bontrager, the IRS can therefore assess restitution against taxpayers not only for evading their own tax obligations, but also for aiding third parties in the evasion of their individual tax obligations.
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[1] 26 U.S.C. § 7201 (emphasis added).
[2] IRC § 6201(a)(4)(A) (emphasis added).
[3] 151 T.C. No. 12 (2018).
[4] Bontrager v. Commissioner, 151 T.C. 213, 216 (2018).
[5] Id. at 217.
[6] Id.
[7] Id. at 220.
[8] Id. at 221 (noting the lack of limiting language in the statute and the “expansive meaning” of the word any).
[9] Id. at 222.
[10] See id. at 221, 223.
