Some taxpayers do not pay taxes because of poor cash flow. Other taxpayers employ elaborate schemes to evade paying taxes. A third category of taxpayers show an indifference to tax obligations and continue to live their lives without paying taxes—some of the latter taxpayers are very rich people!
The U.S. Court of Appeals for the Ninth Circuit determined what mental state is required to find that a taxpayers’s federal tax liabilities should be excepted from discharge under 11 U.S.C. §523(a)(1)(C) for willfully attempting to evade paying the tax. In Hawkins v. Franchise Tax Board of California, 769 F.3d 662 (9th Cir. 2014), the Ninth Circuit concluded that “specific intent” to evade is required for the discharge exception to apply.
In Hawkins, the taxpayer enjoyed the trappings of wealth, including a private jet, expensive private schooling for the children, an ocean-side condominium in La Jolla, CA, and a large private staff. Taxpayer was a successful capitalist who invested in tax shelters upon the advice of tax counsel. The IRS audited Hawkins and challenged the validity of the tax shelters. The IRS then disallowed the tax shelters and assessed taxes and penalties of $16 million.
Hawkins did very little to alter his lavish lifestyle after it became apparent that Hawkins was insolvent and their personal living expenses exceeded their earned income. Later, Hawkins filed Chapter 11 bankruptcy and confirmed a liquidating plan of reorganization. The IRS received over $3 million from the bankruptcy estate. The plan provided for a discharge of all preconfirmation debts, but provided that Hawkins and the IRS could bring suit to determine if the tax debt was dischargeable by the bankruptcy. Such a suit was filed.
The IRS’ argued that the tax debt should not be discharged in bankruptcy because Hawkins’ maintenance of a rich lifestyle after their living expenses exceeded their income constituted a willful attempt to evade taxes. The bankruptcy court agreed, but the Hawkins court reversed and rejected the IRS’ broad interpretation of the word “willful” and adopted a narrow interpretation of “willful.” More specifically, the Hawkins court concluded that declaring a tax debt nondischargeable under §523(a)(1)(C) on the basis that the taxpayer “willfully attempted in any manner to evade or defeat such tax” requires a showing of specific intent to evade the payment of taxes. Id. at 669.
The Hawkins court distinguished its ruling from the ruling of other circuits that have found income taxes nondischargeable if the taxpayer merely committed the evasive acts intentionally—even if taxpayer’s evasive acts were committed for a purpose other than evading the payment of taxes (e.g. payment of money to doctors for cancer treatment instead of paying IRS). While the Hawkins court noted that other circuits used different semantics, the court noted that most of the cases in the other circuits resulting in nondischargeability actually involved intentional acts or omissions designed to evade taxes. Id. at 669.
The Hawkins court reversed the bankruptcy court and remanded for consideration of the facts in light of the new “intent to evade” standard. Apparently the Hawkins court wanted the bankruptcy court to determine if Hawkins continuation of a lavish lifestyle after IRS assessment of $16 million was (a) an indifference to taxpayer’s duty to pay taxes, or (b) an attempt to evade paying the taxes.
Practice Pointer: Some red flags indicating intent to evade paying taxes include: keeping double books, making false bookkeeping entries, destroying records, transferring assets to a third-party, and concealing assets.
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