Posted 10:33 pm Thursday, November 15, 2012
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Ruling will send tax return tampering case to appeals court
A Cherokee County case will move forward to the 12th Court of Appeals in Tyler under a claim that the county court does not have jurisdiction over federal tax returns.
The notice of appeal was filed in a tampering with a governmental record case involving a woman who helped prepare a tax return for a couple. The woman on Wednesday was sentenced to 180 days in jail for the class A misdemeanor. However, the sentence was probated for six months, meaning she will not serve jail time unless she violates her probation, Cherokee County Attorney Craig Caldwell said.
The sentencing came a day after two motions to dismiss were filed on behalf of the woman.
The judge listened carefully, but he felt the decision would have to be made by the Court of Appeals, Wes Volberding, the attorney representing the defendant, said.
The charge stems from 2010, when the woman allegedly made a false entry in a U.S. Individual Income Tax Return for a couple, which included the words “self-prepared,” indicating that the couple prepared the tax return, according to court documents.
The notice of appeal was filed in a tampering with a governmental record case involving a woman who helped prepare a tax return for a couple. The woman on Wednesday was sentenced to 180 days in jail for the class A misdemeanor. However, the sentence was probated for six months, meaning she will not serve jail time unless she violates her probation, Cherokee County Attorney Craig Caldwell said.
The sentencing came a day after two motions to dismiss were filed on behalf of the woman.
The judge listened carefully, but he felt the decision would have to be made by the Court of Appeals, Wes Volberding, the attorney representing the defendant, said.
The charge stems from 2010, when the woman allegedly made a false entry in a U.S. Individual Income Tax Return for a couple, which included the words “self-prepared,” indicating that the couple prepared the tax return, according to court documents.
The Texas Penal Code states that an individual commits the tampering offense if he/she “makes, presents or uses any record, document or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record” or “knowingly makes a false entry in, or false alteration of, a government record.” A governmental record includes “anything belonging to, received by, or kept by government for information, including a court record,” and “a license, certificate, permit, seal title, letter of patent, or similar document issued by government, by another state or by the United States.”
In a motion to dismiss the case, Volberding argued that while Texas defines the term “governmental record,” it doesn’t include federal tax returns.
“I think it’s unlikely that the Court of Appeals will be the first court of the country to hold that a state court has jurisdiction over federal tax returns …” he said Wednesday. “For reasons easily imaginable, Congress created an income tax program and made federal courts to enforce tax filings. We cannot have 50 states also trying to prosecute federal tax cases.”
But Caldwell said there is no case law that prohibits the county court’s prosecution of the tampering case.
For instance, he said he found a Court of Criminal Appeals case where an individual was prosecuted for forging a Social Security card.
“I think it was argued that (it) has to be a federal claim, (and) a federal claim court said they understand it could be, but they have laws that provide (legal remedy) that allows it to go forward,” Caldwell said.
Now that the tampering case is moving forward into the appeal process, the defendant doesn’t have to report to probation until the Court of Appeals makes a decision, he said. Volberding estimated that a decision could be made six months from now.
In a motion to dismiss the case, Volberding argued that while Texas defines the term “governmental record,” it doesn’t include federal tax returns.
“I think it’s unlikely that the Court of Appeals will be the first court of the country to hold that a state court has jurisdiction over federal tax returns …” he said Wednesday. “For reasons easily imaginable, Congress created an income tax program and made federal courts to enforce tax filings. We cannot have 50 states also trying to prosecute federal tax cases.”
But Caldwell said there is no case law that prohibits the county court’s prosecution of the tampering case.
For instance, he said he found a Court of Criminal Appeals case where an individual was prosecuted for forging a Social Security card.
“I think it was argued that (it) has to be a federal claim, (and) a federal claim court said they understand it could be, but they have laws that provide (legal remedy) that allows it to go forward,” Caldwell said.
Now that the tampering case is moving forward into the appeal process, the defendant doesn’t have to report to probation until the Court of Appeals makes a decision, he said. Volberding estimated that a decision could be made six months from now.
