
USCA1 Opinion

	




          July 20, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 91-2186                                                UNITED STATES,                                      Appellee,                                          v.                                 WILLIAM S. RUSSELL,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                       [Hon. Shane Devine, U.S. District Judge]                                           ___________________                                 ___________________                                        Before                               Selya, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               William S. Russell on brief pro se.               __________________               Michael L.  Paup, Acting Assistant Attorney  General, Robert               ________________                                      ______          E. Lindsay,  Alan Hechtkopf  and Karen  M. Quesnel,  Tax Division          __________   ______________      _________________          Department of Justice, on brief for appellee.                                  __________________                                  __________________                 Per Curiam.  The appellant, William  S. Russell, owned a                 __________            business in  New Hampshire.  He  and his wife  took no salary            from the business, but they used substantial amounts of money            from corporate  accounts  to  pay  their  personal  expenses,            failed  to declare the payments as income, and failed to file            individual and corporate income tax returns.  Russell pleaded            guilty  to  one count  of  conspiracy to  defraud  the United            States,  18  U.S.C.    371, and  three  counts of  income tax            evasion, 26  U.S.C.   7201, and received a twenty-seven month            prison sentence.                 Russell, who  was  represented  by  counsel  before  the            district court  but appears  pro se here,  challenges neither                                         ______            his plea nor his sentence, but argues that the indictment was            "false and  fraudulent" because  it charged him  with evading            the income tax  by, among  other things, failing  to file  an            income  tax return.  According  to Russell, the indictment is            therefore contradictory because without a return the Internal            Revenue  Service cannot  make a  valid assessment,  without a            valid assessment there can  be no tax liability,  and without            liability there can be no evasion.                 This  is incorrect.  The crime of income tax evasion has            three  elements:  (1) willfulness,  (2)  existence  of a  tax            deficiency,  and  (3)  an  affirmative  act  constituting  an            evasion or attempted evasion  of the tax.  Sansone  v. United                                                       _______     ______            States, 380 U.S. 343,  351 (1965).  A tax  deficiency "exists            ______                                         -2-            from the date  a return is to  be filed and  . . . arises  by            operation  of  law when  the return  is  not filed."   United                                                                   ______            States v. Hogan, 861 F.2d 312,  315 (1st Cir. 1988).  As long            ______    _____            as the  tax is  "due  and owing"  in this  manner, no  formal            assessment is necessary.  Id.                                      ___                 Russell's  other arguments  are  equally without  merit.            First, he was required by statute to make a return, 26 U.S.C.              6012, and pay the tax owed.  26 U.S.C.   6151.  Second, the            requirement that he file  a return did not violate  the Self-            Incrimination  Clause of  the  Fifth Amendment.   See  United                                                              ___  ______            States  v. Sullivan, 274  U.S. 259, 263-64  (1927).  Finally,            ______     ________            the district court had subject-matter jurisdiction, 18 U.S.C.               3231,  as  well  as "territorial"  jurisdiction  over  the            prosecution.  See United  States v. Lussier, 929 F.2d  25, 27                          ___ ______________    _______            (1st Cir. 1991) (per curiam).                 Affirmed.                 _________                                         -3-
