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                    [NOT FOR PUBLICATION]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
      

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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.
              

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