United States v. Bok (156 F.3d 157, 1998)

STRAUB, Circuit Judge:

David S. Bok appeals from a conviction by a jury before Judge Koeltl for attempted income tax evasion in violation of 26 U.S.C. § 7201 and for making false statements on corporate income tax returns in violation of 26 U.S.C. § 7206(1). Bok’s appeal raises several issues. First, he argues that the trial court erred in not instructing the jury that a distribution of money he received from a corporation in which he was the sole shareholder may have constituted a nontaxable return of capital. Bok also challenges the trial court’s instruction to the jury on the materiality of the false statements he made on the corporate returns he signed. Third, Bok alleges that the trial court improperly admitted evidence of his not filing various state and federal tax returns — which were not at issue in the indictment — to prove intent under Rule 404(b) of the Federal Rules of Evidence. And finally, Bok contends the trial court’s requirement that he contribute ten percent of his gross monthly income towards his outstanding personal tax liability as a condition of supervised release violates 28 U.S.C. § 3663.

Having considered these arguments, we affirm in all respects.

BACKGROUND

Bok was in the construction contracting business in 1988 and 1989, during which time he was the president and sole shareholder of Abacus Construction Corp. Abacus had numerous clients both for commercial and residential projects, mostly in Manhattan. In the years before 1988, Bok had occupied a similar position with Abacus’s predecessor corporation and, immediately before that, had attended and graduated from law school, having passed courses in both personal and corporate taxation.

Bok ran into trouble with the Internal Revenue Service in the early 1990s because he had not filed a personal income tax return for the 1988 tax year, and because Abacus had not filed corporate returns for 1988 and 1989. Responding to the IRS’s requests, Bok eventually filed all three returns, in each case using the services of an accountant to prepare them. The accountant testified that he in turn had based his work on information provided by Bok. When Bok did file Abacus’s corporate returns, there were significant discrepancies between Abacus’s reported gross receipts and its actual gross receipts as suggested by a review of the company’s bank statements. Similar discrepancies existed with respect to Bok’s personal return for 1988, on which he had failed to include over $200,000 he had received from Abacus that year.

Specifically, for the 1988 tax year, a review of Abacus’s bank statements indicated that the company had gross receipts of between $3.9 million and $4.8 million. Abacus’s tax return for that year reflected gross receipts of just below $410,000. Similarly in 1989, Abacus’s bank statements indicated gross receipts of just over $2 million, while its tax return reported slightly less than $405,000.

Bok’s 1988 individual tax return listed his gross income as $58,154, only $16,700 of which derived from Abacus. During 1988, however, Bok used $202,765 of Abacus’s assets to purchase a condominium in Manhattan, which Bok used as a personal residence. Also in 1988, Bok used $20,122.22 of Abacus’s funds to purchase municipal bonds in his own name. In neither case did Bok disclose to his accountant his appropriation of Abacus’s funds, and his personal income tax return in no way reflected his appropriation of those funds.

Bok was indicted and tried on one count of attempted personal tax evasion and two counts of making false statements on an income tax return. A jury convicted him on all three counts, and the trial court sentenced him to thirty months’ incarceration and three years’ supervised release. In addition, as a condition of Bok’s supervised release, the trial court required Bok’s cooperation in calculating the amount of back taxes that he owed to the government and ordered that Bok pay ten percent of his gross monthly income towards his individual tax liability for 1988 (up to a total of $45,000). As outlined above and discussed in greater detail below, Bok challenges his conviction on several grounds. After considering Bok’s arguments, we conclude that the trial court committed no error and therefore affirm.

DISCUSSION

I. Jury Instructions

Two discrete portions of Bok’s jury instructions are before us on appeal. First, we must determine whether the trial court erred in not instructing the jury that the money Bok took from Abacus to pay for the condominium and municipal bonds may have been an untaxable return of capital. Second, we analyze whether the trial court improperly prevented the jury from deciding the materiality of Bok’s misstatements on Abacus’s corporate tax returns.

As an initial matter, “[a] jury instruction is erroneous if it misleads the jury as to the correct legal standard or does not adequately inform the jury on the law.” United States v. Dinome, 86 F.3d 277, 282 (2d Cir.1996) (internal quotation marks omitted). We review challenged jury instructions de novo but will reverse only if all of the instructions, taken as a whole, caused a defendant prejudice. See United States v. Locascio, 6 F.3d 924, 939 (2d Cir.1993) (citing United States v. Pujana-Mena, 949 F.2d 24, 27 (2d Cir.1991)), cert. denied, 511 U.S. 1070, 114 S.Ct. 1645 (1994). With respect to both instructions, the government argues that Bok did not object to the court’s actual charge and that therefore he may only challenge portions of it if the trial court’s decisions amount to plain error under Rules 30 and 52(b) of the Federal Rules of Criminal Procedure. See Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 1548, 137 L.Ed.2d 718 (1997). Bok admits that he did not object at the proper time to the materiality issue and that the plain error standard applies. He does not explicitly accept or deny the government’s contention with respect to the instruction on calculation of his income. It is, however, not necessary in this case for us to determine whether to use plain error analysis or whether the usual harmless error standard applies because neither of the trial court’s instructions was erroneous.

A. Return of Capital

On the morning of the last day of the government’s ease, one day before the trial court submitted the ease to the jury, Bok presented the court with several additional requests to charge. One of them concerned the treatment for tax purposes of money withdrawn by a shareholder from a corporation. Through that proposed charge, Bok sought to characterize the money he received from Abacus for his condominium and his municipal bonds as a nontaxable return of capital that he had invested in the corporation rather than as a taxable dividend. The proposed charge read as follows:

Return of Capital Non-Income Transaction

If a shareholder in a corporation withdraws his capital from that corporation, either all or part of that withdrawal is not income to the shareholder, and need not be reflected on that shareholder’s personal income tax return. The same treatment occurs if the shareholder directs the corporation to pay to a third party for his benefit all or part of his capital contribution.

Defendant’s Additional Requests to Charge at 2. The government opposed the use of the proposed charge, arguing both that it was not legally correct as written and that there was no basis in fact for its inclusion in the charge as a whole.

After entertaining arguments from both sides, the trial court decided against including Bok’s proposed charge as written. The trial judge did invite Bok to work with the government to craft a more correct statement of the law, but the two sides evidently never reached agreement on an instruction. The trial judge went on to say that, in keeping with his obligation to instruct the jury correctly on the law, he had included a charge “about a corporate distribution and how that can be income.” Trial Transcript at 963. Ultimately the relevant portion of the charge read as follows:

Gains or profits and income derived from any source whatever are included in gross income for the purpose of taxation of income. This includes both lawful and unlawful gains.

In order to prove that the defendant received substantial additional income omitted from his tax return, the government has introduced evidence that the defendant was the sole shareholder, or owner, of Abacus Construction Corp., a corporation, and received certain funds or assets from the corporation for the purchase of an apartment and a bond.

If you find that the defendant obtained such funds, or assets, or other property from Abacus Construction Corp., then you should proceed to determine whether this was income to the defendant.

In this connection, the question for you to determine is whether the defendant had control over the funds, or assets, or other property from that corporation, took it as his own and treated it as his own, so that as a practical matter he derived economic value from the funds, or assets, or other property received. If you find this to be the case, then the funds, or assets, or property received by the defendant would be income; if you do not find this to be the case, then the funds or assets or other property obtained by the defendant would not be income to the defendant.

Trial Transcript at 1126-27.

We have long recognized that under certain circumstances monies lawfully withdrawn from a corporation by one of its shareholders may constitute a nontaxable return of capital. See United States v. D’Agostino, 145 F.3d 69, 72 (2d Cir.1998); DiZenzo v. Commissioner, 348 F.2d 122, 125 (2d Cir.1965). A central condition for the application of the return of capital theory — which we have also called the “no earnings and profits, no income” rule — is that the corporation must not have earned a profit for the year in which the withdrawal was made. See D’Agostino, 145 F.3d at 72. Under this theory, if a shareholder has invested capital in a corporation and the corporation has not earned a profit for the year at issue, any monies the shareholder removes from the corporation (up to the amount of invested capital) constitute only a return of the shareholder’s basis, not dividend income.

The return of capital theory derives from the Internal Revenue Code itself, which defines the term “dividend” to mean “any distribution of property made by a corporation to its shareholders ... out of its earnings and profits of the taxable year, ... without regard to the amount of the earnings and profits at the time the distribution was made.” 26 U.S.C. § 316(a)(2) (1994) (emphasis added). The Code further provides that “[t]hat portion of the [corporate] distribution [of property to its shareholders] which is not a dividend shall be applied against and reduce the adjusted basis of the stock.” 26 U.S.C. § 301(c)(2) (1994). The natural implication of the two provisions read together is that in the absence of earnings or profits, a shareholder may treat any distribution up to the value of capital invested in the corporation — that is, the taxpayer’s basis — as a re-ton of that capital. Both the Tax Court and the Tax Litigation Service of the IRS have explicitly adopted this approach in the civil enforcement context. See Truesdell v. Commissioner, 89 T.C. 1280, 1294-95, 1987 WL 258105 (1987); Truesdell, action on decision, 1988-025, 1988 AOD Lexis 22 (Sept. 12, 1988).

We have made clear that the return of capital theory applies equally in both criminal and civil eases, assuming that the diversion itself was not unlawful. See D’Agostino, 145 F.3d at 72-73; see also United States v. Leonard, 524 F.2d 1076, 1083 (2d Cir.1975) (Friendly, J.) (recognizing the return of capital theory in a criminal tax prosecution but holding that the defendant faded to meet the burden of going forward as to the corporation’s lack of earnings or profits), cert. denied, 425 U.S. 958, 96 S.Ct. 1737, 48 L.Ed.2d 202 (1976). In D’Agostino, we explicitly rejected the prevailing rule in several of our sister Circuits. See 145 F.3d at 72-73. These require only that the government prove that the taxpayer had “actual command” over the funds at issue in a criminal tax evasion case and do not require a showing that earnings and profits existed in a year in which the distribution was made. See United States v. Williams, 875 F.2d 846, 850-52 (11th Cir.1989); United States v. Goldberg, 330 F.2d 30, 38 (3d Cir.), cert. denied, 377 U.S. 953, 84 S.Ct. 1630, 12 L.Ed.2d 497 (1964); Davis v. United States, 226 F.2d 331, 335-36 (6th Cir.1955), cert. denied, 350 U.S. 965, 76 S.Ct. 432, 100 L.Ed. 838 (1956).

Similarly, in return of capital cases, a taxpayer’s intent is not determinative in defining the taxpayer’s conduct. That is, the taxpayer or the corporation need not have described the distribution at issue as a dividend or a return of capital at the time it was made; rather, the realities of the transaction — -including the amount of the shareholder’s basis and the corporation’s earnings or profits, as well as the amount of the distribution- — -govern its characterization for tax purposes. See DAgostino, 145 F.3d at 72-73. In this way, the court in D’Agostino applied the return of capital theory even though it had “little doubt the D’Agostinos acted with bad intentions” when Mrs. D’Agostino surreptitiously diverted up to $4,000 each week in large bills from the couple’s solely-owned businesses to her kitchen drawer. Id. at 70, 73.

The fact that the return of capital theory applies in this Circuit does not, however, end our inquiry. We must also determine whether Bok established an adequate basis in the record for the proposed charge. The legal standard is generous: Generally “a criminal defendant is entitled to instructions relating to his theory of defense, for which there is some foundation in the proof, no matter how tenuous that defense may appear to the trial court.” United States v. Dove, 916 F.2d 41, 47 (2d Cir.1990), quoted in United States v. Workman, 80 F.3d 688, 702 (2d Cir.), cert. denied, — U.S. -, 117 S.Ct. 319, 136 L.Ed.2d 233 (1996). On appeal, however, “[a] conviction will not be overturned for refusal to give a requested charge ... unless that instruction ... represents a theory of defense with basis in the record that would lead to acquittal.” United States v. Allen, 127 F.3d 260, 265 (2d Cir.1997) (quoting United States v. Vasquez, 82 F.3d 574, 577 (2d Cir.1996)) (internal quotation marks omitted). In determining whether an adequate basis exists for a return of capital charge, we must first determine the extent and nature of the showing the defendant must make.

Although our earlier eases have not stated it with perfect clarity, a defendant does always bear the burden of production— under which the defendant must make an initial showing on each key element of the theory — to receive an instruction on the return of capital theory. That is, there must be some credible evidence that the corporation did not enjoy income or profits for the tax year at issue, and that the amount of the taxpayer’s capital contribution exceeded the amount of the distribution from the corporation. The court in Leonard effectively held as much:

In. prosecutions for income tax violations, production of a rather slight amount of evidence by the Government, here the proof of receipt of what are charitably characterized as constructive dividends rather than embezzled funds, may transfer the burden of going forward to the defendant. Although the • ultimate burden of persuasion remains with the Government, Leonard did not introduce sufficient evidence of an absence of earnings or profits....

524 F.2d at 1083 (citations omitted). Though Leonard used precatory language in discussing the defendant’s burden of production, it did not purport to do away with the general requirement that a proposed jury instruction must have an adequate basis in fact. To the extent that Leonard was at all unclear on the issue, we now clarify that in order to merit a charge on the return of capital theory, a defendant must satisfy a burden of production by showing that an adequate basis in fact exists for the charge. As suggested by the cases cited, in Leonard, 524 F.2d at 1083, this is not the only circumstance in which a taxpayer faces a burden of production once the government has come forward with evidence of tax evasion. See, e.g., United States v. Vardine, 305 F.2d 60, 63 (2d Cir.1962) (“[I]t is reasonable to require the defendant, if he wishes to disprove intent and likely source [of a net worth bulge], to bear the burden of going forward when he alleges that he had additional deductions not claimed on his income tax return.”). Of course in cases involving the return of capital theory, the allocation of the burden of going forward to the taxpayer does not affect the ultimate burden of persuasion, which always