         IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT KNOXVILLE
                                     January 30, 2007 Session

          STATE OF TENNESSEE v. JEFFREY A. SUNDAHL, ALIAS

                        Appeal from the Criminal Court for Knox County
                           No. 80880    Mary Beth Leibowitz, Judge



                        No. E2006-00569-CCA-R3-CD - Filed May 2, 2007


The defendant, Jeffrey A. Sundahl, was charged with four counts of unlawfully and knowingly
depriving the state of the realization of its lawful revenue by failing to remit sales tax revenue, a
Class E felony; one count of unlawfully and knowingly delaying, hampering, impeding, obstructing,
and thwarting the state in its collection of its lawful revenue by failing to register with the state under
Tennessee Code Annotated section 67-6-601, a Class E felony; and one count of theft over $60,000,
a Class B felony. The trial court dismissed all six charges on statute of limitations grounds. The
state appeals the dismissals. We affirm the judgments of the trial court as to counts 1 through 5. We
conclude, however, that the trial court wrongly applied a three-year statute of limitations to the theft
count, count 6, and we reverse the judgment as to that count.


Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed in Part
                        and Reversed in Part, Case Remanded

JOSEPH M. TIPTON , P.J., delivered the opinion of the court, in which JERRY L. SMITH and JAMES
CURWOOD WITT , JR., JJ., joined.

Robert E. Cooper, Jr., Attorney General and Reporter; John H. Bledsoe, Assistant Attorney General;
Randall E. Nichols, District Attorney General; and Kevin James Allen, Assistant District Attorney
General, for the appellant, State of Tennessee.

Ralph E. Harwell and Tracy Jackson Smith, Knoxville, Tennessee, for the appellee, Jeffrey A.
Sundahl.

                                               OPINION

        This case relates to allegations that the defendant failed to pay sales tax to the State of
Tennessee while doing business as Sundahl, Inc., d/b/a Superior Fitness Equipment. A presentment
was returned against the defendant on December 14, 2004. The dates of the defendant’s offenses
are alleged in the presentment as follows: Count 1: failure to remit sales tax revenue to the state
between September 1, 1997, and December 31, 1997; Count 2: failure to remit sales tax revenue to
the state between January 1, 1998, and December 31, 1998; Count 3: failure to remit sales tax
revenue to the state between January 1, 1999, and December 31, 1999; Count 4: failure to remit sales
tax revenue to the state between January 1, 2000, and December 31, 2000; Count 5: failure to register
with the state as required by Tennessee Code Annotated section 67-6-601 between September 1,
1997, and December 31, 2000; Count 6: exercising control over money totaling at least $60,000 and
belonging to the state without consent and with the intent to deprive the state between September
1, 1997, and December 31, 2000. Counts 1 through 5 charge the defendant with violations of the
Tax Enforcement Procedures Act, specifically Tennessee Code Annotated section 67-1-1440(d).
Count 6 charges the defendant with theft over $60,000, in violation of Tennessee Code Annotated
section 39-14-103. The presentment alleges that the defendant concealed his crimes in counts 1, 2,
and 5, until at least November 1, 2000.

       The defendant filed a motion to dismiss all counts, contending that prosecution was barred
by the three-year statute of limitations for crimes “arising under the revenue laws of the state.”
T.C.A. § 40-2-101(c). The trial court granted the motion to dismiss as to counts 1 through 5 and
reserved ruling on count 6 until the state filed a Bill of Particulars. The state’s Bill of Particulars
described the offense in count 6 as occurring

                between the 1st day of September, 1997 and the 31st day of December,
                2000 whereas during that time, the defendant operated a business
                known as “Sundahl Inc. d/b/a Superior Fitness Equipment” . . . and
                in a continuous larcenous scheme, he knowingly obtained and
                exercised control over sales tax revenue, the property of the State of
                Tennessee without the effective consent of said owner and with the
                intent to deprive same thereof.

The trial court ordered count 6 dismissed on the ground that it also fell within the three-year statute
of limitations for offenses arising under revenue laws.

        On appeal, the state contends that the trial court applied the wrong statute of limitations to
each charge. The state argues that a six-year statute of limitations applies to counts 1 through 5 and
that an eight-year statute of limitations applies to count 6. The defendant counters that the trial court
properly dismissed all charges by applying the three-year statute of limitations.

                                           I. COUNTS 1-5

        Under Tennessee Code Annotated section 40-2-101(c),

                [O]ffenses arising under the revenue laws of the state shall be
                commenced within the three (3) years following the commission of
                the offense, except that the period of limitation of prosecution shall
                be six (6) years in the following instances:


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               (1) Offenses involving the defrauding or attempting to defraud the
               state of Tennessee or any agency of the state, whether by conspiracy
               or not, and in any manner;

               (2) The offense of willfully attempting in any manner to evade or
               defeat any tax or the payment of a tax;

               (3) The offense of willfully aiding or abetting, or procuring,
               counseling or advising, the preparation or presentation under, or in
               connection with, any matter arising under the revenue laws of the
               state, or a false or fraudulent return, affidavit, claim or document,
               whether or not the falsity or fraud is with the knowledge or consent
               of the person authorized or required to present the return, affidavit,
               claim or document; and

               (4) The offense of willfully failing to pay any tax, or make any return
               at the time or times required by law or regulation; and

               (5) Nothwithstanding the provisions of subdivision (b)(3) to the
               contrary, prosecution for the offense of arson as prohibited by § 39-
               14-301 shall commence within eight (8) years from the date the arson
               occurs.

        In the present case, prosecution against the defendant began on December 14, 2004, when
the presentment was filed. The alleged offenses in all counts occurred at various times between
September 1, 1997, and December 31, 2000. Even under the state’s assertion in counts 1, 2, and 5
that the defendant concealed his crimes until November 1, 2000, prosecution on counts 1 through
5, beginning December 14, 2004, would be barred by the application of the three-year statute of
limitations.

         The state argues that a six-year limitations period should apply to counts 1 through 5 because
those offenses fit under the exception listed in section 40-2-101(c)(1): “Offenses involving the
defrauding or attempting to defraud the state of Tennessee or any agency of the state, whether by
conspiracy or not, and in any manner[.]” The state concedes that none of the other revenue-related
exceptions for which a six-year statute of limitations applies would apply in the present case because
they refer to specific offenses for which the defendant was not charged. The defendant counters the
state’s contention by arguing that the presentment “does not allege that the Defendant defrauded or
intended to defraud the State, acted with bad motives or wicked designs, or did any other act which
would give rise to the six (6) year statute of limitations.” The trial court agreed with the defendant
and applied the three-year statute of limitations. We conclude that the three-year statute was
properly applied to bar prosecution in counts 1 through 5.



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         In counts 1 through 4, the state alleged that the defendant “did unlawfully and knowingly
deprive the State of Tennessee of the realization of its lawful revenue, to wit: sales tax revenue . .
. .” In count 5, the state alleged that the defendant “did unlawfully and knowingly delay, hamper,
hinder, impede, obstruct and thwart the State of Tennessee in the collection of its lawful revenue,
to wit: sales tax revenue, by design in that the said [defendant] ... failed to register with the State of
Tennessee . . . .” These charges were brought under the authority of Tennessee Code Annotated
section 67-1-1440(d), which provides:

                        It is a Class E felony for any person to delay, hamper, hinder,
                impede, obstruct or thwart the state of Tennessee in the collection of
                any of its lawful revenue, or to deprive the state of the realization of
                such revenue at the time it is lawfully entitled thereto by any artifice,
                design, false weight or measure, stratagem, or by the falsification of
                any record, report or return required by law.

        We note, initially, that the terms “defraud” or “fraud” are not in the statute. Nor did the
presentment expressly allege that the defendant defrauded the state. However, as the state points out,
the exception to the three-year limitations period found in section 40-2-101(c)(1) does not refer to
a particular criminal offense but to any criminal offense which fits the description of involving the
“defrauding or attempting to defraud the state.”

         According to Black’s Law Dictionary, to “defraud” involves making a “misrepresentation
of an existing material fact, knowing it to be false or making it recklessly without regard to whether
it is true or false . . . .” Black’s Law Dictionary, 6th ed. (1991). “Defraud” can also mean “[t]o
practice fraud; to cheat or trick” or “[t]o deprive a person of property . . . by fraud, deceit, or
artifice.” Id; see also State v. Chance, 778 S.W.2d 457, 462 (Tenn. Crim. App. 1989) (approving
trial court’s instructions that defined “to defraud” as “to practice fraud, to cheat or trick, to deprive
a person of property or any interest, estate, or right, by fraud, deceit, or artifice”). Our code states
that for use in Title 39 “‘[f]raud is defined as used in normal parlance and includes, but is not limited
to, deceit, trickery, misrepresentation and subterfuge, and shall be broadly construed to accomplish
the purposes” of the criminal code. T.C.A. § 39-11-106(a)(13).

        The presentment does not allege that the defendant’s acts involved fraud, and counts 1-4 do
not even allege that the defendant acted intentionally, only that he acted “unlawfully and knowingly.”
Count 5 alleges that the defendant acted “knowingly” and “by design” in failing to register his
business as he was required under law but does not allege that the defendant engaged in any form
of fraud, deceit, or artifice in depriving the state of its sales tax revenue. The state argues that in the
context of the defendant’s alleged offenses, “‘deprive’ and ‘defraud’ have the same practical
meaning.” We disagree.

        We note that the language of Tennessee Code Annotated section 40-2-101(c) mirrors the
language of title 26, section 6531 of the United States Code, which provides a three-year limitations
period for prosecuting “any of the various offenses arising under the internal revenue laws.” Like


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the Tennessee statute, the federal statute lists a number of offenses for which a six-year, as opposed
to a three-year, limitations period applies, including, “offenses involving the defrauding or
attempting to defraud the United States or any agency thereof, whether by conspiracy or not, and in
any manner.” 26 U.S.C. § 6531(1). The Unites States Supreme Court has held that Congress did
not intend to apply the “defrauding or attempting to defraud” exception to cases charging the attempt
to evade or defeat taxes. United States v. Scharton, 285 U.S.518, 52 S. Ct. 416 (1932) (noting also
that exceptions to the general statutory provision should be narrowly construed). In that case, the
Court rejected the government’s argument that “fraud is implicit in the concept of evading or
defeating.” Id. at 520, 52 S. Ct. at 417. We likewise reject the state’s argument that “‘deprive’ and
‘defraud’ have the same practical meaning.” Stating that the defendant knowingly deprived the state
of its revenue does not equate the defendant’s actions with defrauding the state.

       We conclude that the defendant’s offenses do not fit within the “defrauding or attempting to
defraud” exception and that the trial court properly applied the three-year statute of limitations for
crimes arising under the state’s revenue laws. The trial court did not err in dismissing counts 1
through 5.

                                             COUNT 6

       The trial court also applied the three-year statute of limitations for crimes arising under the
revenue laws to bar prosecution of count 6, theft over $60,000. The state contends that the trial court
misapplied this statute and should have applied the eight-year limitations period for Class B felonies.
See T.C.A. § 40-2-101(b)(2).

        This issue requires us to decide whether the defendant’s alleged theft offense “arises under”
the state’s revenue laws. Neither the state nor the defendant cite any authority that explains when
an offense “arises under” the revenue laws, and no Tennessee case law defines the statutory “arising
under” language. However, we again find guidance in federal cases interpreting the applicability of
the federal statute of limitations governing offenses “arising under the internal revenue laws.” 26
U.S.C. § 6531. Federal courts have shown a reluctance to apply the statute of limitations for
offenses arising under the revenue laws for any offenses that are not charged as violations of the
revenue laws. In United States v. Lowry, 409 F. Supp. 2d 732 (W.D. Va. 2006), a district court
rejected the defendant’s argument that although he was charged with violating a provision of the
Bank Secrecy Act, 31 U.S.C. § 5341, the three-year statute of limitations governing offenses arising
under revenue laws applied because his offense was related to his obstruction of the IRS’s efforts
to collect income taxes. The court held that although the particular indictment in this case related
to the defendant’s tax evasion, the defendant was not charged with a violation of the revenue laws,
and the court would apply the statute of limitations that generally applied to offenses of the kind for
which the defendant was indicted. Id. at 741. In another case, the Fifth Circuit refused to apply the
three-year statute of limitations for offenses arising under revenue laws where the defendant was
charged under the general conspiracy statute, not under the revenue laws, even though the defendant
had conspired to assist another in violating a particular revenue law. United States v. Ely, 140 F.3d
1089 (5th Cir. 1998).


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        We conclude that the Tennessee statute of limitations for offenses arising under the revenue
laws of the state should likewise be applied only to offenses that are charged under the revenue laws.
In the present case, count 6 charges the defendant with theft over $60,000, in violation of Tennessee
Code Annotated section 39-14-103. Theft of property occurs when a person, “with intent to deprive
the owner of property, . . . knowingly obtains or exercises control over the property without the
owner’s effective consent.” T.C.A. § 39-14-103. Although the theft in this particular case relates
to the defendant’s alleged failure to remit sales tax, violation of the revenue laws is not a necessary
element of the offense of theft. The defendant complains that the state “has attempted to characterize
the offenses alleged in Count Six as ‘theft’ in an obvious attempt to avoid the bar of the statute of
limitations.” However, theft is a crime distinct from the other revenue offenses with which the
defendant was charged, and it has different elements and requires different proof. It is not
uncommon for the same criminal activity to give rise to charges of multiple offenses. The fact that
the defendant’s theft charge relates to the same allegedly criminal activity also at issue in counts 1
through 5 does not preclude us from concluding that count 6 does not “arise under” the revenue laws.
Because count 6 is not governed by the statute of limitations in section 40-2-101(c), we apply the
general limitations period for Class B felonies that is provided in section 40-2-101(b)(2), eight years.
The trial court erred in dismissing count 6 on the basis that it was barred by the three-year statute of
limitations.

                                          CONCLUSION

        Based upon the foregoing and the record as a whole, we affirm the judgment of the trial court
as to counts 1 through 5 but reverse the judgment as to count 6, the theft allegation. This case is
remanded to the trial court for further proceedings consistent with this opinion.



                                                        ___________________________________
                                                        JOSEPH M. TIPTON, PRESIDING JUDGE




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