Intentional Omissions on IRS Forms 433-A/433-B Are Affirmative Acts of Tax Evasion (Third Circuit)

1. Introduction

In United States v. Brandon Aumiller (3d Cir. July 1, 2026), the Third Circuit addressed a recurring “evasion of payment” problem: when a taxpayer, already facing IRS collection efforts, submits financial disclosure paperwork that omits bank accounts or assets. The Government charged Brandon L. Aumiller with two counts of tax evasion under 26 U.S.C. § 7201, alleging that from 2014 through 2016 (and later through the superseding indictment), he attempted to evade the collection of assessed taxes, including by using bank accounts not disclosed to the IRS.

The central issues were (1) whether intentionally omitting bank accounts from IRS collection information statements (Forms 433-A and 433-B) qualifies as an “affirmative act” of evasion (as opposed to mere nonpayment), and (2) whether the indictments adequately charged a timely affirmative act within the six-year limitations period in 26 U.S.C. § 6531(2). Aumiller also challenged the sufficiency of the trial evidence supporting conviction.

2. Summary of the Opinion

The Third Circuit affirmed. It held that the intentional filing of IRS Forms 433-A/433-B that omit assets constitutes an “affirmative act” of tax evasion under § 7201. Because Aumiller signed the Forms on December 12, 2016 and submitted them in early 2017, the charged conduct fell within six years of the December 8, 2022 indictment. The court further held the charging instruments gave adequate notice: the indictments alleged use of undisclosed bank accounts and the bill of particulars expressly identified the false Forms and the omitted M&T accounts. Finally, the court found sufficient evidence for a rational juror to convict, including testimony about the IRS collection process, Aumiller’s notice of disclosure requirements, and proof the omitted accounts existed and were used during the relevant period.

3. Analysis

A. Precedents Cited (and How They Shaped the Holding)

1) Defining “affirmative act” under § 7201

  • Spies v. United States, 317 U.S. 492 (1943): The foundational source for the “affirmative act” requirement. The Third Circuit relied on Spies’s broad formulation that evasion can be “any conduct, the likely effect of which would be to mislead or to conceal,” and that mere nonpayment alone is insufficient. This language allowed the court to treat deceptive omissions on collection forms as concealment-based conduct, not passive inaction.
  • United States v. McGill, 964 F.2d 222 (3d Cir. 1992), as amended (May 19, 1992), as amended (June 24, 1992): Aumiller leaned heavily on McGill’s caution that failing to report an account “cannot amount to an affirmative act” absent “voluntary admissions during an investigation or a forced response to a subpoena.” The court distinguished McGill as a case where the defendant did not conceal the account “apart from the fact that he did not inform the IRS of its existence.” By contrast, Aumiller was asked to disclose accounts on Forms 433 and then affirmatively omitted the M&T accounts—placing him within McGill’s own “voluntary admissions” exception.
  • United States v. Voigt, 89 F.3d 1050 (3d Cir. 1996): Voigt supplied two key supports. First, it recognized the IRS uses Forms 433-A and 433-B in assessing a taxpayer’s ability to pay (contextualizing why omissions matter). Second, it reiterated that “acts intended to conceal or mislead are sufficient” and that the Government need only produce “some evidence” from which a jury could infer intent to mislead or conceal beyond mere nonpayment—an evidentiary framing the court later used to reject Aumiller’s sufficiency challenge.
  • United States v. McKee, 506 F.3d 225 (3d Cir. 2007): McKee defined the elements (including willfulness) and served as a cautionary tale on indictment/instructions mismatch. Aumiller argued the Government pivoted to uncharged conduct. The court distinguished McKee because, there, jury instructions permitted conviction based on conduct not alleged (falsifying books/records), whereas here the indictments alleged use of undisclosed accounts and the bill of particulars specified the false Forms as the mechanism of nondisclosure, matching the jury charge.

2) Sister-circuit authority on Form 433 omissions as affirmative acts

  • United States v. Crandell, 72 F.4th 110 (5th Cir. 2023): The Third Circuit cited Crandell’s policy-and-function logic: false Form 433 submissions can “string the IRS along” by inducing slow repayment schedules based on understated assets. The Third Circuit “join[ed]” this approach, aligning itself with a growing consensus that such omissions impede collection and therefore qualify as affirmative acts of evasion.
  • United States v. Pieron, No. 21-2899, 2022 WL 3867562 (6th Cir. Aug. 30, 2022): Used for the proposition that omissions in Form 433 can be “compelling evidence” of evasion—supporting both the legal characterization of omissions and the sufficiency of proof.
  • United States v. Memmott, 667 F. App’x 206 (9th Cir. 2016) (unpublished): Cited to reinforce that false statements on Form 433-A may alone suffice as evidence of an attempted evasion of payment.

3) Statute of limitations and “last act” framing

  • United States v. Carlson, 235 F.3d 466 (9th Cir. 2000) and United States v. Payne, 978 F.2d 1177 (10th Cir. 1992): These cases were cited for the principle that, in evasion-of-payment prosecutions, the limitations period runs from the “last act of evasion.” The Third Circuit accepted the parties’ agreement on this framing and applied it to find timeliness based on the December 12, 2016 signing/submission of the false Forms.

4) Indictment sufficiency, bills of particulars, and notice

  • United States v. Kemp, 500 F.3d 257 (3d Cir. 2007) and United States v. Rankin, 870 F.2d 109 (3d Cir. 1989): These cases supplied the governing standard: an indictment is sufficient if it states the elements and provides enough factual orientation for the defendant to prepare a defense; tracking statutory language can suffice if the defendant has adequate notice.
  • United States v. Smith, 776 F.2d 1104 (3d Cir. 1985) and Gov't of V.I. v. Pemberton, 813 F.2d 626 (3d Cir. 1987): The court used these to define the proper role of a bill of particulars: it “define[s] and limit[s]” the Government’s case but cannot change the charged crime.
  • United States v. Dolan, 120 F.3d 856 (8th Cir. 1997) and United States v. Cianchetti, 315 F.2d 584 (2d Cir. 1963): These supported the conclusion that a bill of particulars may validly clarify an indictment and identify a timely act within a broader time window without impermissibly adding an element.

5) Overlapping criminal statutes and tax evasion

  • United States v. Beacon Brass Co., 344 U.S. 43 (1952) and Loughrin v. United States, 573 U.S. 351 (2014): These cases supported the court’s observation that false statements potentially chargeable under other statutes may also constitute affirmative acts of tax evasion, and statutory overlap is not unusual.

6) Standards of review and preservation

  • United States v. Nolan-Cooper, 155 F.3d 221 (3d Cir. 1998): Set the appellate review framework for denial of a motion to dismiss (plenary on legal conclusions; clear error on factual findings).
  • United States v. Hendrickson, 949 F.3d 95 (3d Cir. 2020) and United States v. Anderson, 108 F.3d 478 (3d Cir. 1997): These governed sufficiency review and preservation. Because Aumiller did not renew his Rule 29 motion at the end of his case, the court noted the issue was reviewed under a plain-error posture as described in Anderson.

B. Legal Reasoning

  1. Step 1: Identify what qualifies as an “affirmative act.” Applying Spies v. United States, United States v. McGill, and United States v. Voigt, the court emphasized the line between mere nonpayment and conduct intended to “mislead” or “conceal.” Forms 433-A/433-B are designed to elicit comprehensive asset and account information used by the IRS to determine collection strategy (e.g., levies, payment plans).
  2. Step 2: Characterize the omission as active concealment, not passive silence. The court treated Aumiller’s conduct as affirmative because he was asked to disclose all accounts and then submitted Forms that “failed to disclose” specified M&T accounts. This was not merely an absence of volunteering information; it was a misleading response in a collection process designed to locate funds. That functional interference with collection is why the court embraced the reasoning of United States v. Crandell and aligned with United States v. Pieron and United States v. Memmott.
  3. Step 3: Timeliness under the “last act of evasion” approach. Using the “last affirmative act” framing cited via United States v. Carlson and United States v. Payne, the court found the relevant act occurred when Aumiller signed (December 12, 2016) and submitted (early 2017) the false Forms, rendering the December 2022 indictment timely.
  4. Step 4: Adequate notice and charging sufficiency. Even though the indictments did not spell out “Form 433-A/433-B” in the charging language, they alleged “affirmative acts” including using an undisclosed bank account while the IRS was collecting. The bill of particulars then specified that the Government would prove concealment through false Forms filed “on or about December 12, 2016” that omitted the M&T accounts. Under United States v. Kemp and United States v. Rankin, that was sufficient notice; under United States v. Smith and Gov't of V.I. v. Pemberton, the bill did not change the crime; and under United States v. Dolan and United States v. Cianchetti, it permissibly clarified a timely act.
  5. Step 5: Reject the McKee mismatch argument. Distinguishing United States v. McKee, the court noted the jury was instructed that the Government alleged Aumiller “filed false financial disclosure forms,” consistent with the indictment theory (undisclosed accounts) and the bill of particulars (false Forms as the concealment mechanism). Thus, there was no conviction for uncharged conduct.
  6. Step 6: Sufficiency of the evidence. The court pointed to concrete trial evidence: IRS testimony about the collection process and request for Forms; evidence that Aumiller knew accounts could be levied; testimony from the tax resolution firm that he must disclose “all accounts”; the Forms themselves; and proof of the omitted M&T accounts’ existence and use at the time of signing. Under United States v. Voigt, this was more than enough for a rational juror to infer intent to mislead or conceal.

C. Impact

This precedential decision clarifies Third Circuit law in several practical ways:

  • Expands and solidifies what counts as “affirmative act” in collection-stage tax evasion: The Third Circuit expressly “join[s]” other circuits in holding that intentionally omitting assets on Forms 433-A/433-B is itself an affirmative act of evasion. This will likely increase charging and trial focus on collection paperwork (not just asset transfers, nominees, cash dealings, or offshore maneuvers).
  • Statute-of-limitations consequences: By treating the submission of false Forms as an affirmative act, the limitations clock can extend based on collection-form filings occurring years after assessment—consistent with a “last act of evasion” model. Defendants with older tax debts can face timely prosecution if they later submit deceptive collection statements.
  • Charging practice and bills of particulars: Prosecutors may draft indictments at a higher level of generality (e.g., “using undisclosed accounts”) and rely on a bill of particulars to identify the specific collection forms and dates—so long as the bill clarifies rather than changes the crime. Defense counsel, in turn, should treat bills of particulars as critical documents for limitations defenses and trial preparation.
  • Interaction with defense theories minimizing “materiality” or “ability to pay”: The court’s citation to Spies v. United States underscores that an affirmative act turns on likely misleading/concealing effect, not whether the omitted accounts were sufficient to satisfy the debt. Attempts to argue “it wouldn’t have changed collection” are less likely to defeat liability where the omission had a tendency to mislead.

4. Complex Concepts Simplified

  • “Evasion of payment” vs. “mere nonpayment”: Owing taxes and not paying is not, by itself, felony tax evasion. Felony evasion requires an extra step—an affirmative act that aims to mislead the IRS or conceal assets (e.g., hiding accounts, using nominees, lying on required forms).
  • “Affirmative act”: A concrete action (or deceptive conduct) that makes it harder for the IRS to collect—such as submitting a form that purports to list all accounts while intentionally leaving some out.
  • Forms 433-A/433-B: IRS “Collection Information Statement” forms used to determine a taxpayer’s financial situation for collection purposes. They directly influence whether the IRS levies accounts, negotiates payment terms, or takes other collection action.
  • Bill of particulars: A document the Government provides (when ordered or voluntarily) to give more detail about what it will prove at trial. It cannot change the charged crime, but it can narrow and clarify the factual theory—often decisive for notice and statute-of-limitations disputes.
  • Statute of limitations (six years here): For § 7201, prosecution must begin within six years. In evasion-of-payment cases, courts often measure from the “last affirmative act of evasion,” meaning later deceptive acts during collection can keep the case timely.

5. Conclusion

United States v. Brandon Aumiller establishes a clear, precedential Third Circuit rule: intentionally filing Forms 433-A/433-B that omit assets or accounts is an affirmative act of tax evasion under 26 U.S.C. § 7201. The court also reinforced that indictments alleging undisclosed accounts can be sufficiently particularized through a bill of particulars identifying the false collection forms and dates, without impermissibly changing the charges. In practice, the decision strengthens the Government’s hand in collection-stage evasion cases and cautions taxpayers (and their advisors) that misleading “collection information” submissions can carry felony exposure and extend limitations timelines.