Background
Between 2011 and 2017, Brandon Aumiller owed unpaid federal income taxes that the IRS attempted to collect. During the collection process, Aumiller maintained undisclosed bank accounts at M&T Bank. In December 2016, the IRS requested that Aumiller complete Forms 433-A and 433-B—standardized collection information statements designed to assess his ability to pay his tax debt. Aumiller signed and submitted these forms in early 2017, but deliberately omitted his M&T bank accounts from them.
On December 8, 2022, Aumiller was indicted on two counts of tax evasion under 26 U.S.C. § 7201. The government alleged that between August 2014 and December 2016, Aumiller attempted to evade tax collection by using bank accounts that were not disclosed to the IRS. The government identified his submission of false Forms 433-A and 433-B as examples of this conduct.
Aumiller moved to dismiss the indictments, arguing the government failed to allege he had committed an “affirmative act” of evasion within the six-year statute of limitations period. The district court denied the motion. After trial, the jury convicted Aumiller on both counts, and he appealed.
The Court’s Holding
The Third Circuit affirmed Aumiller’s conviction, holding that submitting false tax collection forms with intentionally omitted bank accounts constitutes an affirmative act of tax evasion. The court rejected Aumiller’s argument that merely failing to disclose accounts cannot constitute an affirmative act. Instead, the court reasoned that when a taxpayer is specifically requested to disclose assets on IRS forms and deliberately omits them, this constitutes affirmative conduct intended to mislead or conceal assets from the government.
The court emphasized that allowing taxpayers to “string the IRS along” by submitting incomplete financial disclosure forms would undermine the government’s collection efforts. The Third Circuit joined other circuit courts (citing the Fifth, Sixth, and Ninth Circuits) in recognizing that filing false Forms 433-A or 433-B constitutes an affirmative act of evasion under § 7201. The submission of Aumiller’s false forms in December 2016 fell well within the six-year statute of limitations, satisfying the temporal requirement for prosecution.
The court further held that the indictments and bill of particulars adequately apprised Aumiller of the charges against him. The indictments alleged he engaged in “affirmative acts” by using undisclosed bank accounts, and the bill of particulars specifically identified his submission of false Forms 433-A and 433-B as evidence of this conduct. The jury instructions accurately reflected the charged conduct.
Key Takeaways
- Filing false tax collection forms (Forms 433-A/433-B) with intentionally omitted bank accounts is an affirmative act of tax evasion, not merely passive failure to disclose.
- Tax evasion requires proof of three elements: an attempt to evade or defeat a tax, an additional tax due and owing, and willfulness. An affirmative act is anything done to mislead the government or conceal funds to avoid payment of a tax debt.
- An indictment need not use the statutory language if it provides sufficient factual orientation to permit the defendant to prepare a defense; a bill of particulars may elaborate on factual allegations in the indictment without impermissibly adding elements.
- The statute of limitations for tax evasion runs from the last affirmative act charged; Aumiller’s December 2016 submission of false forms triggered the six-year window within which prosecution was timely.
Why It Matters
This decision clarifies federal tax evasion law in the Third Circuit and aligns it with other circuits by establishing that submitting false financial disclosure forms during active IRS collection efforts constitutes an affirmative act of evasion. Previously, there was ambiguity about whether passive nondisclosure could ever rise to the level of an affirmative act. This opinion resolves that question by distinguishing between mere failure to volunteer information and deliberately submitting false statements when specifically asked to disclose assets.
The ruling has practical significance for IRS enforcement efforts. Tax collection frequently relies on Forms 433-A and 433-B to assess taxpayers’ assets and payment capacity. By recognizing that deliberate omissions on these forms constitute affirmative acts of evasion, courts now provide the government a powerful prosecutorial tool when taxpayers attempt to conceal assets during collection proceedings. Defense counsel should note that the court’s emphasis on the taxpayer’s knowledge—that Aumiller knew the IRS had previously levied his disclosed accounts and was specifically told by his tax firm to disclose all accounts—suggests the affirmative act doctrine may be limited to circumstances where the defendant had clear notice of the disclosure requirement.