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The Third Circuit Says It Is Hard To Abuse The Trust of Someone Who Doesn’t Trust You, Especially If That Someone Is The IRS

James and Theresa DeMuro owned an engineering company in New Jersey called TAD Associates.

Not unlike yesterday’s tax case from the Eleventh Circuit, TAD Associates withheld money for taxes from its employees paychecks. TAD did not send that money along to the IRS.

The IRS approached the DeMuros about this. It was a civil matter at that point – the IRS required the DeMuros to set up a special trust account where they were to put their employees taxes.

1285834_four_hands.jpgThe DeMuros set up the account. The purpose of the account was to hold money that would be paid to the IRS.

The DeMuros, though, took money out of the account to pay for personal expenses. And they closed the account early, and without the permission of the IRS. They also didn’t put as much money into the account as the IRS thought they should, though they did spend a massive sum on items for themselves.

They were indicted for conspiracy to defraud the United States, 21 counts of failure to account for and pay employment taxes, and other tax charges.

They were convicted.

At sentencing, the district court applied a sentencing enhancement for abuse of a position of trust, because the DeMuros had signature authority on the trust account and did not handle it in the way that the IRS wanted them to.

Sentencing Guidelines § 3B1.3 says that:

If the defendant abused a position of public or private trust, or used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels.

As the Third Circuit explained, in the appeal of the DeMuros sentence, United States v. DeMuro (and conviction – though that part of the appeal didn’t go too well), when deciding whether the enhancement for abuse of position of trust is warranted:

we employ a two-step analysis: (1) whether the defendant occupied a position of public or private trust; and (2) whether the defendant abused this position of trust in a way that significantly facilitated the crime.

In turn, the Third Circuit looks at three things in deciding whether the person occupied a position of trust:

[I]n considering whether a position constitutes a position of trust for purposes of § 3B1.3, a court must consider: (1) whether the position allows the defendant to commit a difficult-to-detect wrong; (2) the degree of authority which the position vests defendant vis-a-vis the object of the wrongful act; and (3) whether there has been a reliance on the integrity of the person occupying the position.

So – did the DeMuros have a position of trust with respect to the IRS that let them not pay their taxes.

The court of appeals said they didn’t for three reasons. The bottom line, though, is that the DeMuro’s position with the IRS wasn’t a position of trust; if anything it was a position of lack of trust.

First, the whole point of the trust account was so the IRS could more easily monitor the DeMuros’ tax payments. The enhancement is supposed to apply to people who hide behind an account to do a crime – here, the account made it easier, not harder, for their conduct to be detected by the IRS. That’s just not a position of trust.

Second, the trust fund was set up to take away discretion by the DeMuros, not add to it.

Third, the IRS set up the trust account because they didn’t want to rely on the integrity of the DeMuros.

Because the trust account was set up not to rely on the IRS’s trust of the DeMuros but to hedge against the IRS’s complete lack of trust, the guidelines enhancement did not apply.

And back to resentencing the case will go.

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