Aiding, Assisting, Procuring, Counseling, or Advising Tax Fraud

(a) Base Offense Level: (1) Level from §2T4.1 (Tax Table) corresponding to the tax loss; or (2) 6, if there is no tax loss. For purposes of this guideline, the “tax loss” is the tax loss, as defined in §2T1.1, resulting from the defendant’s aid, assistance, procurance or ad- vice. (b) Specific Offense Characteristics (1) If (A) the defendant committed the offense as part of a pattern or scheme from which he derived a substantial portion of his income; or (B) the defendant was in the business of preparing or assisting in the preparation of tax returns, increase by 2 levels. (2) If the offense involved sophisticated means, increase by 2 levels. If the resulting offense level is less than level 12, increase to level 12. Commentary Statutory Provision: 26 U.S.C. § 7206(2) (other than a violation based upon 26 U.S.C. § 6050I). Application Notes: 1. For the general principles underlying the determination of tax loss, see §2T1.1(c) and Application Note 1 of the Commentary to §2T1.1 (Tax Evasion; Willful Failure to File Return, Supply Infor- mation, or Pay Tax; Fraudulent or False Returns, Statements, or Other Documents). In certain 334 ║ Guidelines Manual (November 1, 2024) §2T1.6 instances, such as promotion of a tax shelter scheme, the defendant may advise other persons to violate their tax obligations through filing returns that find no support in the tax laws. If this type of conduct can be shown to have resulted in the filing of false returns (regardless of whether the principals were aware of their falsity), the misstatements in all such returns will contribute to one aggregate “tax loss.” Subsection (b)(1) has two prongs. The first prong applies to persons who derive a substantial portion of their income through the promotion of tax schemes, e.g., through promoting fraudulent tax shelters. The second prong applies to persons who regularly prepare or assist in the prepa- ration of tax returns for profit. If an enhancement from this subsection applies, do not apply §3B1.3 (Abuse of Position of Trust or Use of Special Skill). Sophisticated Means.—For purposes of subsection (b)(2), “sophisticated means” means es- pecially complex or especially intricate offense conduct pertaining to the execution or conceal- ment of an offense. Conduct such as hiding assets or transactions, or both, through the use of fictitious entities, corporate shells, or offshore financial accounts ordinarily indicates sophisti- cated means. 2. 3. Background: An increased offense level is specified for those in the business of preparing or assisting in the preparation of tax returns and those who make a business of promoting tax fraud because their misconduct poses a greater risk of revenue loss and is more clearly willful. Other considerations are similar to those in §2T1.1. Historical Note Effective November 1, 1987. Amended effective November 1, 1989 (amendments 231 and 303); November 1, 1990 (amendment 343); November 1, 1993 (amendment 491); November 1, 1998 (amendment 577); Novem- ber 1, 2001 (amendment 617). §2T1.5. [Deleted] Historical Note Section 2T1.5 (Fraudulent Returns, Statements, or Other Documents), effective November 1, 1987, was de- leted by consolidation with §2T1.1 effective November 1, 1993 (amendment 491).