Joseph B. Williams, III, Petitioner

T .C . Memo . 2009-8 1 UNITED STATES TAX COURT JOSEPH B . WILLIAMS, III, Petitioner v . :COMMISSIONER OF INTERNAL REVENUE, Responden t 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 deficienciesand fraud penalties for all 8 years . P filed a petition in this Court in which he asserted that he merely pleaded guilty totax .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 .81years .

Held , further , P's conviction for tax evasion under I .R .C . sec . 7201 for 1993 through 200 0 SERVED Apr 16 2009 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 t o 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 penaltie s under sections .6663 and .6662, respectively, for all 8 of those years .

Mr . Williams petitioned this Court, pursuant t o section 6213(a), to redetermine those deficiencies .

previously decided several threshold jurisdictional issues, see Williams v . Commissioner , 131 T .C . (2008), and the case i s '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 judgmen t pursuant to Rule 121 .," The issue-,for decision is whether respondent is entitled to partial, summary judgment² becaus e Mr . Williams's guilty plea to criminal tax evasion under section 7201 with respect to ;Mtax 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 everyone 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, an d respondent's motion will be granted .

Background The following facts are not in dispute and=are derived fro m the pleadings, the parties' motionpapers,,and the supporting, exhibits attached thereto ."p { Mr . Williams' s Business Activit y During the years at issue, Mr . Williams was-an oil trade r for Mobil Oil .,-who traveled to foreign countries .- In 199 3 2Respondent seeks summary judgment for all 8. of the°tax " .

years at issue, but only as to the issueof whether Mr . Williams fraudulently underpaid his=income taxes, :not as to the,actual amounts of tax deficiency and penalties .

4 - 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,,(cid:127)more than $7 million was, . ;;deposited'in the,ALQI accounts,- -and ;more than,$800, 000 :in .interest was earned on thos e deposits, t Respondent: alleges that, these' deposits and the interest thereon,were current income to Mr Will-jams .in,the-tax years received . or earned ., Mr . Williamsdisagrees,and- .alleges that these amounts were not-taxable to him until-ALQI distributed-,the m 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 di d not reflect the deposits to or interest on the ALQI accounts .

filed- the return ,for,(cid:127)each year . in the- succeeding ;year, and he filed . the latest of them ( for , 200 .0) ; 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(cid:127) count of .,conspiracy 3Mr . Williams filed his return for 1993 on April '15, 1994 ; for 1994- .on'April'17,' 1995 ; for .19 .95 on April 15, 1996 ; for 1996 on .April,.15,,.1997 ; for 1997 on Apri¹ .15, 1998 ; for 1998 on April 15, 1999 ; for `1999 on April 17, ;, X2000, ;. -and for 2000 on May, 15, . 2001 .

.

C to defraud the- :IRS, in v'iolation of .,..18, U . S .-C_ section 371 ._, (the conspiracy count), and .(2) one count of criminal tax evasion,-wit h respect to each :of the '8 tax .years 1993'-through .2000, .E in violation of section 7201 of the' Internal Revenue . Code . (the tax- evasion count) .' The tax evasion count alleged tax evasion in all⁸ 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 .

"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 heiein,'the procedure employed in Mr . Williams's case was a criminal information . An'indictment is 11[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. ~% '` Individual Income Tax Returns, Form 1040, for . the calendar years 1993 through 2000 , on which he failed to .disclose his interest in the secretAlgi 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 :

r 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 l,670,891 ;4 9 , 1998 133,371 .90 .

1999, t- 109,167 .5 9 2000 _~ (cid:127) I 256,234 .6 4 (Title 26, United States Code,',Section 7201) .

[Emphasis added . ] Mr . Williams's June 2003 Guilty Plea and Convictio n On June 12, 2003, Mr . Williams entered a plea of guilty to one count of conspiracy to defraud the IRS in,violation o f

V In the course of taking the guilty plea, the District Cour t judge asked Mr . Williams for a specific allocution as to what ; ` crimes he committed . We quote here from Mr . Williams's.

allocution, emphasizing language that acknowledged tax evasion i n 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 durin g the years 1993 to 2000 .

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

.I knew that most-'of .the funds ,deposited into the Algi-accounts and all the interest income were taxable income to me . However, the calendar year tax returns for 1 93 through 2000, Ichose 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 . SHER TLER` [Defense Counsel] . : And, your honor, may I -- we're not adopting or accepting the facts as stated in the conspiracy count , which I think 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 ha s 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, But I think I am -- and I, if .you have at the moment . 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 . getting two the million dollar payment , which is what's charged in count one [ the conspiracy count!, and not- reporting it .

I believe Mr . Williams acknowledged .THE COURT : And, in fact, . has allocuted with respect to ;,the elements ,in count two [ the tax evasio n 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 ta x evasion count was .entered against Mr . Williams and became fina l on October 22, 2003 .

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

Year 1993 1994 1995 1996 1997 199 8 1999 2000 Deficiency Sec . 6663 Sec . 666 2 Penalty $417,652 $313,038 .0 0 304,740 417,354 226,206 .7 5 313,015 .5 0 1,572,673 1,179,504 .7 5 809,620, 511,143 .00 $25,619 .2 0 52,73 3 113,049 120,391 39,549 .7 5 33,395 .25 13,704 .4 0 74,093 .25 4,320 .0 0 Proceedings in This Cour t 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 .

t Mr . Williams does not dispute . that he committed tax, frau d and owes Federal income taxes and interest and penalties thereon .

However, Mr .

. Williams argues that he merely pleaded guilty t o criminal tax evasion in some indeterminate year or years during I) the span of .1993. through 2000,1, .notg,for all, of . ,the :years, nor for any given year, therein . Thus, Mr . . Williams's .dispute is limite d 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 2 6 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] asfactually 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=rejectedd'* * * . 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 .

.* -* * Given this .

- it - . Discussion I .

Standard for Summary Judgmen t 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 o f 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 ,

fact exists, and the Court will view any factual material anda , 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")), ., The issue of whether Mr . Williams fraudulently underpaid hi s Federal income taxes in 1993 through 2000 can be resolved on the 12, basis of the- undisputed facts .

II .

Mr . Williams's Liability for Civil Tax Frau d 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 . 1.993 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 .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 ~ determine d " [i] n the case (cid:127) of - a false or fraudulent return, with the .. intent` t o 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 .,,re =spondent'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 . _- t 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 on e 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 , 153-154 '(197,9) the . Supreme . ,Court explained',the doctrine,o f collateral ;estoppel,'as .fbllows :-.

Undercollateral-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 involvingya party. to-the prior litigation .

When the prior .determination was in a , `criminal case," and the subsequent (cid:127)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 4 [in a criminal : F information] necessary to his-plea agreement in a later civil :

suit" . United States v'. Wight , 839,F-.2d-193, = .19. 6 (4th Cir .

1987) ; see also' Arcti-c Ice Cream 'Co . v . ' Commissioner ; x-43 T .C . 68-, 75 (1964)-(,"a plea of "guilty .* '*' *` is a-conclusive judicial ' admissio.n`of :all'6f the essential . elements of the" offense'which - the . indictment charges") .

The three Code sections . .involved-in this collateral,estoppel question . are section 72 .01 '(defining .the :crime, of "attempt [ing ] * * * to evade or defeat any tax"), section 6501(c)(1) (extendin g indefinitely the period of limitation for assessment of tax "[i]n the case of a false or fraudulent return with the intent to evad e tax"), and section 6663(a) (imposing a civil penalty fo r 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 (cid:127)" false or fraudulent return[s] with the intent to evade tax " ( unde r section'6501(c)(1)), and whether he had tax underpayments "dueito 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 convictio n 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 ta x 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) . Because Mr . Williams was convicted of tax evasion for 1993 through 2000, he is estopped from contesting the essentia l 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 o f collateral estoppel in litigation under the Internal Revenu e 5See'also-Amos v . Commissioner , 43T .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 sectionS6663 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 shoul d estop him from denying only the generality that he committed ta x 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 committe d criminal tax evasion in each and every one of the 8 tax years at issue, because he merely pleaded guilty, to criminal tax evasio n 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 supersedin g criminal information or allocute to specific facts in his guilt y plea that could estop him from denying criminal tax evasion i n any given year ; and (iii) the utility of ruling on . whether h e fraudulently underpaid his income-'taxes in any given year before determining the amount of tax evaded is negligible and does no t materially advance the resolution of this case :

a `(cid:127) Tax Years' Covered- by the Gui'lty Plea- Mr . =Williams alleges that-the .District-Court did not (in the language of Montana ) "actually and necessarily" determine- and the`part.ies,did,not agree--that he,,committed criminal tax evasio n in each and every one of the 8 tax-years .at issue . Instead , Mr . Williams argues that he merely pleaded guilty to criminal ta x evasion at some point within 1993 through 2000 .

Williams properly cites Montana v . United States , supr a at 153-154, for the proposition that collateral estoppel applie s once an issue is "actually and necessarily " determined .

However , by accepting Mr . Williams 's guilty plea and entering a judgmen t 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, t o a 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 -- c 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 wit h equivalent language, stating at hi s plea, hearing :

believe that I am guilty ; of evading the,paymentof taxes for ` th e tax years 1993- through 2000 ."4 Thus, there is,no " question that, - 18 r 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 Fact s If a defendant pleads guilty but denies particular allegations in the indictment or criminal information, then it i s 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 crimina l information that could estop him from denying that he committed criminal tax .evasion in any of the 8 tax years at issue. .

s Instead, Mr . Williams argues that he merely pleaded guilty t o 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 T . , F , 1 about the conspiracy count at_,his-plea, hearing, . to the effec t 6See 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) ("az 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 pu'rposes`")) :` 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,-providesfthat h e 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 t o Mr . . Williams ' s plea :. agreement ; ` and he might beprecluded here, .

from retrying even the-facts underlying the conspiracy count .

.

However, the" facts most relevant here are -not :` the -facts .of L the conspiracy count but the facts of the tax evasion .,count .

; Even if Mr . Williams :.-had sufficiently. denied" the facts of th e r ~ .

conspiracy count so as to be free to dispute those facts in subsequent litigation,, neither Mr . Williams nor his defens e 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 A statements that Mr . Williams cites as his-denial of the content s of the superseding criminal information explicitly refer to the conspiracy count, and that count alone . Mr . Williams did no t specifically deny any particular fact, allegation, or issue i n the tax evasion count of the superseding criminal information at his plea hearing or otherwise . Thus, Mr . Williams is estoppe d from denying the contents of the tax evasion count, including the - 2 0 charge that he "unlawfully , . willfully and knowingly did attemp t to evade and defeat a substantial .part .of(cid:127)the income tax due and owing by J . BRYAN WILLIAMS and . his .spouse°to .the UnitedhStates of America_forthe .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(cid:127)to "what he did", Mr . Williams stated ( as, . is iquoted above) - .- (cid:127) that(cid:127) .he "received [income] from foreign sources during the years 1993 to 2000 " ; (cid:127) that "the funds * * * and all the interest income were, taxable income to me . However,, - [on] the calendar year tax returns .for 1 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 Issu e 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 .

A Mr . Williams argues that it serves little or no purpose for thi s 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 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 b e issued .

18. U . S . C . section 371 and to, one count' of criminal tax evasio n with respect to the 8 tax years l-993 ._through 2000, in violatio n section 7201 .
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 .