                  T.C. Memo. 2009-81



                UNITED STATES TAX COURT



        JOSEPH B. WILLIAMS, III, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 2202-08.              Filed April 16, 2009.



     P filed tax returns for 1993 through 2000. He was
later charged with tax evasion under I.R.C. sec. 7201
for all 8 years. By agreement P pleaded guilty to one
count of tax evasion in a superseding criminal
information as to all 8 years. By a notice of
deficiency issued in October 2007, R determined
deficiencies and fraud penalties for all 8 years. P
filed a petition in this Court in which he asserted
that he merely pleaded guilty to tax evasion in some
indeterminate year or years during the span of 1993
through 2000, not for all 8 years nor for any given
year therein. R moved for partial summary judgment on
the issue of P’s fraud for all 8 years.

     Held: The superseding criminal information, P’s
allocution and plea, and the conviction all explicitly
assert tax evasion in all 8 years.

     Held, further, P’s conviction for tax evasion
under I.R.C. sec. 7201 for 1993 through 2000
                                - 2 -

     collaterally estops him for each of those years from
     denying civil fraud for purposes of the statute of
     limitations, see I.R.C. sec. 6501(c)(1), and the fraud
     penalty, see I.R.C. sec. 6663(a).



     David H. Dickieson, for petitioner.

     John C. McDougal, for respondent.



                         MEMORANDUM OPINION


     GUSTAFSON, Judge:    Petitioner Joseph Bryan Williams, III,

was charged with tax crimes for each of the 8 years 1993 through

2000.    He pleaded guilty and was convicted for all 8 years.

Subsequently, the Internal Revenue Service (IRS) issued to

Mr. Williams a statutory notice of deficiency pursuant to

section 6212,1 showing the IRS’s determination of deficiencies in

income tax and accompanying fraud and accuracy-related penalties

under sections 6663 and 6662, respectively, for all 8 of those

years.

     Mr. Williams petitioned this Court, pursuant to

section 6213(a), to redetermine those deficiencies.    We

previously decided several threshold jurisdictional issues, see

Williams v. Commissioner, 131 T.C. __    (2008), and the case is



     1
      Unless otherwise indicated, all citations to sections refer
to the Internal Revenue Code of 1986 (26 U.S.C.), as amended, and
all citations to Rules refer to the Tax Court Rules of Practice
and Procedure.
                               - 3 -

now before us on respondent’s motion for partial summary judgment

pursuant to Rule 121.   The issue for decision is whether

respondent is entitled to partial summary judgment2 because

Mr. Williams’s guilty plea to criminal tax evasion under section

7201 with respect to tax years 1993 through 2000 collaterally

estops him from contesting that he fraudulently underpaid his

income taxes for all 8 of the tax years at issue.   Mr. Williams

acknowledges that he is liable for civil tax fraud on the basis

of his criminal conviction, but he opposes the motion by arguing

that the conviction does not make him liable in every one of the

8 years, but in only some of them (yet to be decided).   However,

the criminal charge, Mr. Williams’s allocution and plea, and the

conviction all explicitly assert tax evasion in all 8 years, and

respondent’s motion will be granted.

                             Background

     The following facts are not in dispute and are derived from

the pleadings, the parties’ motion papers, and the supporting

exhibits attached thereto.

Mr. Williams’s Business Activity

     During the years at issue, Mr. Williams was an oil trader

for Mobil Oil, who traveled to foreign countries.   In 1993



     2
      Respondent seeks summary judgment for all 8 of the tax
years at issue, but only as to the issue of whether Mr. Williams
fraudulently underpaid his income taxes, not as to the actual
amounts of tax deficiency and penalties.
                               - 4 -

Mr. Williams opened two bank accounts at Banque Indosuez in

Switzerland in the name of ALQI Holdings, Ltd. (ALQI), a British

Virgin Islands corporation (the ALQI accounts).     From 1993

through 2000, more than $7 million was deposited in the ALQI

accounts, and more than $800,000 in interest was earned on those

deposits.

     Respondent alleges that these deposits and the interest

thereon were current income to Mr. Williams in the tax years

received or earned.   Mr. Williams disagrees and alleges that

these amounts were not taxable to him until ALQI distributed them

to him.

The Examination and Criminal Information

     For each of the 8 tax years 1993 through 2000, Mr. Williams

filed a Form 1040, U.S. Individual Income Tax Return, that did

not reflect the deposits to or interest on the ALQI accounts.     He

filed the return for each year in the succeeding year, and he

filed the latest of them (for 2000) in May 2001.3

     The IRS conducted an investigation of Mr. Williams and ALQI,

which culminated in Mr. Williams’s being charged in April 2003.

The superseding criminal information (to which Mr. Williams later

pleaded guilty) stated two counts:     (1) one count of conspiracy


     3
      Mr. Williams filed his return for 1993 on April 15, 1994;
for 1994 on April 17, 1995; for 1995 on April 15, 1996; for 1996
on April 15, 1997; for 1997 on April 15, 1998; for 1998 on April
15, 1999; for 1999 on April 17, 2000; and for 2000 on May 15,
2001.
                                     - 5 -

to defraud the IRS, in violation of 18 U.S.C. section 371 (the

conspiracy count), and (2) one count of criminal tax evasion with

respect to each of the 8 tax years 1993 through 2000, in

violation of section 7201 of the Internal Revenue Code (the tax

evasion count).4       The tax evasion count alleged tax evasion in

all 8 years, as follows:


                                   COUNT TWO

                                 (Tax Evasion)

         *         *         *        *          *   *       *

          (17) From in or about 1993, through in or about
     April 2001, in the Southern District of New York and
     elsewhere, J. BRYAN WILLIAMS, the defendant,
     unlawfully, willfully and knowingly did attempt to
     evade and defeat a substantial part of the income tax
     due and owing by J. BRYAN WILLIAMS and his spouse to
     the United States of America for the calendar years
     1993 through 2000, by various means, including, among
     others by (a) arranging for approximately $7.98 million
     in payments which were income to Williams to be made
     into the secret Alqi accounts in Switzerland he
     controlled; and (b) preparing and causing to be
     prepared, signing and causing to be signed, and filing
     and causing to be filed, false and fraudulent U.S.


     4
      While Mr. Williams seems to use the terms “criminal
information” and “indictment” interchangeably, both at his plea
hearing and in his pleadings and motion papers herein, the
procedure employed in Mr. Williams’s case was a criminal
information. An indictment is “[t]he formal written accusation
of a crime, made by a grand jury and presented to a court for
prosecution against the accused person”, whereas an information
is “[a] formal criminal charge made by a prosecutor without a
grand-jury indictment.” Black’s Law Dictionary 788, 795 (8th ed.
2004). These are different procedures, see Fed. R. Crim. P. 7,
but the difference is not material either to the application of
collateral estoppel to a conviction or to the outcome of this
case, see infra pt. II.B.1.
                                 - 6 -

     Individual Income Tax Returns, Form 1040, for the
     calendar years 1993 through 2000, on which he failed to
     disclose his interest in the secret Alqi bank accounts
     in Switzerland, and on which, in the years set forth
     below, he failed to report the approximate amounts of
     income set forth below, and upon which income there was
     a substantial additional tax due and owing to the
     United States of America:

         Calendar Year                    Approximate Amount
                                               of Income
              1993                           $1,029,518.72
              1994                              752,479.52
              1995                              998,723.14
              1996                            3,917,762.57
              1997                            1,670,891.49
              1998                              133,371.90
              1999                              109,167.59
              2000                              256,234.64

          (Title 26, United States Code, Section 7201).


     [Emphasis added.]

Mr. Williams’s June 2003 Guilty Plea and Conviction

     On June 12, 2003, Mr. Williams entered a plea of guilty to

one count of conspiracy to defraud the IRS in violation of

18 U.S.C. section 371 and to one count of criminal tax evasion

with respect to the 8 tax years 1993 through 2000, in violation

of section 7201.

     In the course of taking the guilty plea, the District Court

judge asked Mr. Williams for a specific allocution as to what

crimes he committed.     We quote here from Mr. Williams’s
                              - 7 -

allocution, emphasizing language that acknowledged tax evasion in

all 8 years at issue:


          THE DEFENDANT: In 1993, with the assistance of a
     banker at Bank Indosuez, I opened two bank accounts in
     the name of a corporation Alqi Holdings, Ltd. Alqi was
     created at that time as a British Virgin Islands
     Corporation. The purpose of that account was to hold
     funds and income I received from foreign sources during
     the years 1993 to 2000.

          Between 1993 and 2000, more than seven million
     dollars was deposited in the Alqi accounts and more
     than $800,000 in income was earned on those deposits.

          I knew that most of the funds deposited into the
     Alqi accounts and all the interest income were taxable
     income to me. However, the calendar year tax returns
     for ‘93 through 2000, I chose not to report the income
     to my -- to the Internal Revenue Service in order to
     evade substantial taxes owed thereon, until I filed my
     2001 tax return.

        *       *       *       *       *       *       *

           I knew what I was doing was wrong and unlawful.
     I, therefore, believe that I am guilty of evading the
     payment of taxes for the tax years 1993 through 2000.
     I also believe that I acted in concert with others to
     create a mechanism, the Alqi accounts, which I intended
     to allow me to escape detection by the IRS. Therefore,
     I am -- I believe that I’m guilty of conspiring with
     the people would whom I dealt regarding the Alqi
     accounts to defraud the United States of taxes which I
     owed.

At the allocution hearing, the court and counsel also discussed

separately Mr. Williams’s plea to the conspiracy count, as to

which reservations were stated on his behalf:


          MR. SHERTLER [Defense Counsel]:    And, your
     honor, may I -- we’re not adopting or accepting the
     facts as stated in the conspiracy count, which I think
                              - 8 -

     is the recitation of what was in the original
     indictment in this case. What we have agreed is that
     Mr. Williams would plead guilty to conspiracy counts,
     but based upon the factual allocution, which he has
     given to this Court.

        *       *       *       *       *       *       *

     * * * [B]ut we are not adopting the facts that are
     stated in that [conspiracy] count. And I think that
     Mr. Neiman [the prosecutor] is correct, he could plead
     guilty to the conspiracy counts based on different
     facts, as long as your Honor is satisfied with the
     allocution.

           THE COURT:    Well, that’s exactly where we are
     at the moment. But I think I am -- and I, if you have
     any other questions, Mr. Neiman, that you want to put
     to him, in addition to those he’s recited, it’s your
     turn.

          MR. NEIMAN [Prosecutor]: No, your Honor. I
     believe that the plea allocution that was given was
     sufficient. I believe Mr. Williams acknowledged
     getting two the million dollar payment, which is what’s
     charged in count one [the conspiracy count], and not
     reporting it.

          THE COURT:     And, in fact, has allocuted with
     respect to the elements in count two [the tax evasion
     count] as well.

          MR. NEIMAN [Prosecutor]: I believe that’s correct,
     you Honor.

          THE COURT:     Very well. I will accept the plea
     and find that you are fully competent and capable of
     entering an informed plea, and that your guilty plea is
     a knowing and a voluntary one and supported by an
     independent basis in fact containing each and every
     essential element of the offense, and the Clerk will
     enter the guilty plea. [Emphasis added.]

A judgment of conviction on both the conspiracy count and the tax

evasion count was entered against Mr. Williams and became final

on October 22, 2003.
                                 - 9 -

     On October 29, 2007, the IRS issued to Mr. Williams a

statutory notice of deficiency pursuant to section 6212, showing

the IRS’s determination of the following deficiencies and

accompanying fraud and accuracy-related penalties under sections

6663 and 6662, respectively, for all 8 of those years:

                                                     Penalty
     Year         Deficiency             Sec. 6663         Sec. 6662
     1993          $417,652          $313,038.00                 ---
     1994           304,740              226,206.75              ---
     1995           417,354              313,015.50              ---
     1996         1,572,673         1,179,504.75                 ---
     1997           809,620              511,143.00        $25,619.20
     1998            52,733               39,549.75              ---
     1999           113,049               33,395.25            13,704.40
     2000           120,391               74,093.25             4,320.00

Proceedings in This Court

     Mr. Williams petitioned this Court pursuant to

section 6213(a) to redetermine those asserted deficiencies.

Respondent moved for partial summary judgment, asking the Court

to hold that Mr. Williams is liable for civil fraud in each of

the 8 years 1993 through 2000.

     Mr. Williams does not dispute that he committed tax fraud

and owes Federal income taxes and interest and penalties thereon.

However, Mr. Williams argues that he merely pleaded guilty to

criminal tax evasion in some indeterminate year or years during
                              - 10 -

the span of 1993 through 2000, not for all of the years nor for

any given year therein.   Thus, Mr. Williams’s dispute is limited

to when (i.e., for what tax years) he owes Federal income taxes:


     The basis for this opposition [to the IRS’s Motion for
     Partial Summary Judgment] is narrow and limited.
     Mr. Williams pled guilty to tax evasion in U.S. v.
     Williams, Criminal No. 03 CR 406 (S.D.N.Y. 2003).
     Consequently, the IRS has the authority, under 26
     U.S.C. Section 6663, to impose a civil fraud penalty as
     a percentage of the tax that was evaded by fraudulent
     means. As indicated in the Petition and subsequent
     pleadings, the principal issue in this case is not that
     Mr. Williams doesn’t owe taxes or penalties, but when
     the taxes and penalties were incurred. This Court must
     make findings relating to the amount and year that such
     taxes and penalties were incurred. Then, based on
     those findings, the IRS can compute the interest owed.
     The difference in the amount of interest will vary by
     many millions of dollars based on this Court’s
     determination of when the income is to be recognized.
     [Emphasis added.]

About his guilty plea, Mr. Williams explains that he--

     viewed those allegations [in the criminal information]
     as factually incorrect, but he was willing to plead
     guilty to Tax Evasion as described by him during his
     allocution to the Court. * * * [B]oth the prosecutor
     and the judge accepted Mr. Williams’ plea on the facts
     that he described and not on the Superseding
     Information that he rejected * * *. * * * Given this
     explicit rejection of the facts alleged in the
     Superseding Information by Mr. Williams and the
     acceptance of that rejection by both the Court and the
     Prosecutor, it is clear that the Superseding Criminal
     Information cannot have a collateral estoppel impact on
     subsequent litigation. The only facts capable of
     establishing a collateral estoppel impact are those
     facts expressly affirmed in Mr. Williams’ allocution.
                               - 11 -

                             Discussion

I.     Standard for Summary Judgment

       Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.    Fla. Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988).    The Court may grant full

or partial summary judgment where there is no genuine issue of

any material fact and a decision may be rendered as a matter of

law.    Rule 121(b); Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986); Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520

(1992), affd. 17 F.3d 965 (7th Cir. 1994).    The moving party

bears the burden of proving that no genuine issue of material

fact exists, and the Court will view any factual material and

inferences in the light most favorable to the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);

Sundstrand Corp. v. Commissioner, supra at 520; Dahlstrom v.

Commissioner, 85 T.C. 812, 821 (1985).    If there exists any

reasonable doubt as to the facts at issue, the motion must be

denied.    Sundstrand Corp. v. Commissioner, supra at 520 (citing

Espinoza v. Commissioner, 78 T.C. 412, 416 (1982) (“The opposing

party is to be afforded the benefit of all reasonable doubt, and

any inference to be drawn from the underlying facts contained in

the record must be viewed in a light most favorable to the party

opposing the motion for summary judgment”)).
                                  - 12 -

        The issue of whether Mr. Williams fraudulently underpaid his

Federal income taxes in 1993 through 2000 can be resolved on the

basis of the undisputed facts.

II.     Mr. Williams’s Liability for Civil Tax Fraud

        Respondent moves for partial summary judgment on the grounds

that Mr. Williams is collaterally estopped from contesting that

he fraudulently underpaid his Federal income taxes in 1993

through 2000 because his guilty plea for criminal tax evasion

under section 7201 as to the years 1993 through 2000 is

conclusive and binding as to those tax years.

      A.     To Prevail in This Case, the IRS Must Prove Fraud.

      Mr. Williams’s fraud is the threshold issue in this case,

not only because his liability for the fraud penalty depends on

it, but also because fraud affects the period of limitations for

assessment of his liability for the tax deficiencies.     Generally,

the IRS must assess a deficiency within 3 years of the date on

which the tax return that relates to such deficiency was filed.

Sec. 6501(a).     For the tax years 1993 through 2000,

Mr. Williams’s latest-filed return (for 2000) was filed May 15,

2001.      However, it was not until more than 6 years later--on

October 29, 2007--that the IRS issued to Mr. Williams a notice of

deficiency, which is the first step in the process of assessing a

deficiency.     If the general rule of section 6501(a) applied, then

the IRS would have failed to assess the deficiency within the
                                - 13 -

period of limitations and would be barred from assessing and

collecting any of the deficiencies or additions to tax for the 8

tax years at issue.    However, if the deficiency was determined

“[i]n the case of a false or fraudulent return with the intent to

evade tax,” then the IRS may assess such deficiency “at any

time.”    Sec. 6501(c)(1).   Thus, we decide as a threshold matter

whether Mr. Williams is liable for fraud under section 6663.

     Respondent bears the burden of proving the existence of

civil tax fraud.    See sec. 7454(a); Rule 142(b).   If respondent

fails to prove fraud, then the statute of limitations will

prevent respondent from assessing and collecting any of the

deficiencies or additions to tax.    See sec. 6501(a).   The

particular issue implicated in respondent’s pending motion is

whether Mr. Williams is liable for fraud for all 8 years, or

whether he is liable for fraud merely for some indeterminate time

within the span of those 8 years.

     B.     Collateral Estoppel Bars Relitigation of Fraud

            1.   Conviction for Attempting To Evade or Defeat Tax
                 Establishes Fraud.

     Respondent asserts that Mr. Williams’s conviction on one

count of criminal tax evasion under section 7201 with respect to

tax years 1993 through 2000 collaterally estops him from

contesting that he fraudulently underpaid his income taxes in

those tax years.    In Montana v. United States, 440 U.S. 147,
                              - 14 -

153-154 (1979), the Supreme Court explained the doctrine of

collateral estoppel as follows:

     Under collateral estoppel, once an issue is actually
     and necessarily determined by a court of competent
     jurisdiction, that determination is conclusive in
     subsequent suits based on a different cause of action
     involving a party to the prior litigation.

When the prior determination was in a criminal case, and the

subsequent suit is civil, this same principle applies.   The Court

of Appeals for the Fourth Circuit (to which an appeal in this

case would lie) has held that “a defendant is precluded [by

collateral estoppel] from retrying issues [in a criminal

information] necessary to his plea agreement in a later civil

suit”.   United States v. Wight, 839 F.2d 193, 196 (4th Cir.

1987); see also Arctic Ice Cream Co. v. Commissioner, 43 T.C. 68,

75 (1964) (“a plea of guilty * * * is a conclusive judicial

admission of all of the essential elements of the offense which

the indictment charges”).

     The three Code sections involved in this collateral estoppel

question are section 7201 (defining the crime of “attempt[ing]

* * * to evade or defeat any tax”), section 6501(c)(1) (extending

indefinitely the period of limitation for assessment of tax “[i]n

the case of a false or fraudulent return with the intent to evade

tax”), and section 6663(a) (imposing a civil penalty for

underpayments “due to fraud”).    Mr. Williams was previously

convicted of “attempt[ing] * * * to evade or defeat” his income
                               - 15 -

tax liability for 1993 through 2000 (under section 7201), whereas

the issues now before us are whether he filed “false or

fraudulent return[s] with the intent to evade tax” (under

section 6501(c)(1)), and whether he had tax underpayments “due to

fraud” (under section 6663).   Though the “evade or defeat”

wording of the criminal statute does not include the “fraud”

vocabulary of the two civil statutes, an evasion conviction

establishes fraud.   We have repeatedly held that “[a] taxpayer is

collaterally estopped from denying civil tax fraud under * * *

[the predecessor of section 6663] when convicted for criminal tax

evasion under section 7201 for the same taxable year.”     DiLeo v.

Commissioner, 96 T.C. 858, 885 (1991), affd. 959 F.2d 16 (2d Cir.

1992).5   Because Mr. Williams was convicted of tax evasion for

1993 through 2000, he is estopped from contesting the essential

elements of criminal tax evasion with respect to tax years 1993

through 2000, which are “identical” to the elements of civil tax

fraud.    Uscinski v. Commissioner, T.C. Memo. 2006-200.

     Mr. Williams does not dispute wholesale this operation of

collateral estoppel in litigation under the Internal Revenue


     5
      See also Amos v. Commissioner, 43 T.C. 50, 55 (1964), affd.
360 F.2d 358 (4th Cir. 1965); Arctic Ice Cream Co. v.
Commissioner, 43 T.C. 68, 74-76 (1964). Because a conviction for
criminal tax evasion under section 7201 conclusively establishes
civil tax fraud under section 6663 in the same tax year, the
unlimited statute of limitations of section 6501(c)(1) is also
applicable. See DiLeo v. Commissioner, 96 T.C. 858, 885 (1991),
affd. 959 F.2d 16 (2d Cir. 1992); Amos v. Commissioner, supra at
55.
                               - 16 -

Code.    He concedes that his guilty plea and conviction

collaterally estop him from contesting that he fraudulently

underpaid his taxes sometime within 1993 to 2000, but he disputes

that he is estopped from denying tax fraud for the entire period

or for any given year therein.

            2.   Mr. Williams’s Arguments Against Collateral
                 Estoppel Lack Merit.

     Mr. Williams contends that his criminal conviction should

estop him from denying only the generality that he committed tax

fraud at some time within 1993 to 2000--not for every year in

that period, nor even in any given year therein--because (he

says):    (I) the District Court did not “actually and necessarily”

determine, and the parties did not agree, that he committed

criminal tax evasion in each and every one of the 8 tax years at

issue, because he merely pleaded guilty to criminal tax evasion

sometime within 1993 to 2000, not for the entire period or any

given year therein; (ii) respondent relies on the contents of the

superseding criminal information to invoke collateral estoppel,

but Mr. Williams did not adopt the contents of the superseding

criminal information or allocute to specific facts in his guilty

plea that could estop him from denying criminal tax evasion in

any given year; and (iii) the utility of ruling on whether he

fraudulently underpaid his income taxes in any given year before

determining the amount of tax evaded is negligible and does not

materially advance the resolution of this case.
                                - 17 -

               a.   Tax Years Covered by the Guilty Plea

     Mr. Williams alleges that the District Court did not (in the

language of Montana) “actually and necessarily” determine--and

the parties did not agree--that he committed criminal tax evasion

in each and every one of the 8 tax years at issue.   Instead,

Mr. Williams argues that he merely pleaded guilty to criminal tax

evasion at some point within 1993 through 2000.

     Mr. Williams properly cites Montana v. United States, supra

at 153-154, for the proposition that collateral estoppel applies

once an issue is “actually and necessarily” determined.    However,

by accepting Mr. Williams’s guilty plea and entering a judgment

of conviction against him, the District Court did “actually and

necessarily” determine that he committed criminal tax evasion in

each tax year from 1993 through 2000.    The plain language of the

tax evasion count of the superseding criminal information, to

which Mr. Williams pleaded guilty and for which he was convicted,

states:

     J. BRYAN WILLIAMS, the defendant, unlawfully, willfully
     and knowingly did attempt to evade and defeat a
     substantial part of the income tax due and owing by J.
     BRYAN WILLIAMS and his spouse to the United States of
     America for the calendar years 1993 through 2000”.
     [Emphasis added.]

Mr. Williams personally and explicitly admitted his guilt with

equivalent language, stating at his plea hearing: “I * * *

believe that I am guilty of evading the payment of taxes for the

tax years 1993 through 2000.”    Thus, there is no question that,
                              - 18 -

when the court accepted his plea and found him guilty,

Mr. Williams was convicted of criminal tax evasion “for the

calendar years 1993 through 2000”.

               b.   Rejection of Superseding Criminal Information
                    and Allocution to Specific Facts

     If a defendant pleads guilty but denies particular

allegations in the indictment or criminal information, then it is

possible that collateral estoppel may not bind the defendant to

those denied allegations,6 and Mr. Williams attempts to invoke

such an exception here.   He asserts that he did not allocute or

admit to any specific facts in the superseding criminal

information that could estop him from denying that he committed

criminal tax evasion in any of the 8 tax years at issue.

Instead, Mr. Williams argues that he merely pleaded guilty to

having committed criminal tax evasion at some point within the

span of 1993 through 2000, and that he denied the prosecutor’s

particular allegations.   He bases this argument, in large part,

on two statements (quoted above) that his defense counsel made

about the conspiracy count at his plea hearing, to the effect


     6
      See United States v. Tolson, 988 F.2d 1494, 1501 n.6 (7th
Cir. 1993) (“absent evidence that the defendant reserved the
issue in the plea, he may not challenge the facts in the
indictment and plea agreement”) (citing United States v. Gilliam,
987 F.2d 1009, 1014 (4th Cir. 1993) (“a plea of guilty to an
indictment containing an allegation of the amount of drugs for
which a defendant is responsible may, in the absence of a
reservation by the defendant of his right to dispute the amount
at sentencing, constitute an admission of that quantity for
sentencing purposes”)).
                              - 19 -

that “we’re not adopting or accepting the facts as stated in the

conspiracy count,” and that “we are not adopting the facts that

are stated in that [conspiracy] count.”

     Mr. Williams’s plea agreement explicitly provides that he

agreed to plead guilty to both counts of the superseding criminal

information.   Thus, the allegations in both counts of the

superseding criminal information are arguably necessary to

Mr. Williams’s plea agreement, and he might be precluded here

from retrying even the facts underlying the conspiracy count.

     However, the facts most relevant here are not the facts of

the conspiracy count but the facts of the tax evasion count.

Even if Mr. Williams had sufficiently denied the facts of the

conspiracy count so as to be free to dispute those facts in

subsequent litigation, neither Mr. Williams nor his defense

counsel denied in whole or in part the facts underlying the tax

evasion count of the superseding criminal information, which

charged him with criminal tax evasion.    Both of the above

statements that Mr. Williams cites as his denial of the contents

of the superseding criminal information explicitly refer to the

conspiracy count, and that count alone.    Mr. Williams did not

specifically deny any particular fact, allegation, or issue in

the tax evasion count of the superseding criminal information at

his plea hearing or otherwise.   Thus, Mr. Williams is estopped

from denying the contents of the tax evasion count, including the
                                - 20 -

charge that he “unlawfully, willfully and knowingly did attempt

to evade and defeat a substantial part of the income tax due and

owing by J. BRYAN WILLIAMS and his spouse to the United States of

America for the calendar years 1993 through 2000”. (Emphasis

added.)

     In fact, Mr. Williams did allocute to specific facts at his

plea hearing that belie his claim that he denied that (or

reserved whether) he committed criminal tax evasion in each and

every one of the 8 tax years at issue.   In response to the

District Court judge’s question as to “what he did”, Mr. Williams

stated (as is quoted above)--

     •    that he “received [income] from foreign sources
          during the years 1993 to 2000”;

     •    that “the funds * * * and all the interest income
          were taxable income to me. However, [on] the
          calendar year tax returns for ‘93 through 2000, I
          chose not to report the income * * * to the
          Internal Revenue Service in order to evade
          substantial taxes owed thereon”; and

     •    that he was “guilty of evading the payment of
          taxes for the tax years 1993 through 2000.”

               c.   Utility of Resolving Tax Fraud Issue

     Respondent has moved only for partial summary judgment.

Respondent requests a holding that Mr. Williams committed fraud

but defers the question of the amount of his liability.

Mr. Williams argues that it serves little or no purpose for this

Court to rule on whether an underpayment in any of the tax years

at issue is due to fraud before it has determined the amount, if
                              - 21 -

any, of such underpayment.   He argues that “the utility of such a

ruling is negligible and not worth the time and resources of the

Court and counsel”, because “it does not materially advance the

litigation, nor does it narrow the issues.”    However, a holding

on whether Mr. Williams committed fraud does narrow the issues

before this Court, and we have previously ruled on the fraud

issue before resolving the amount of the underpayment in other

tax fraud cases.   See, e.g., Uscinski v. Commissioner, T.C. Memo.

2006-200.

     Therefore, we hold that respondent has shown that he is

entitled to summary judgment with respect to the issue of whether

collateral estoppel applies to establish civil tax fraud in each

tax year from 1993 through 2000.    We hold that the statute of

limitations does not bar assessment of Mr. Williams’s tax

liability for those years, and that he will be liable for the

fraud penalty.   However, the issue of the amounts of the

deficiencies of tax and penalties for 1993 through 2000, and the

issue of accuracy-related penalties, remain for trial.

     To reflect the foregoing,


                                     An appropriate order will be

                                 issued.
