Post-Moore Clarification: § 3231 Controls Criminal Tax Jurisdiction; § 7403 Foreclosures Constitute “Seizures Under Title 26” for § 7212(b); Form 4549/SFR Evidence Can Prove § 7201 Liability

Case: United States v. Cromar, No. 25-4002 (10th Cir. Sept. 2, 2025) (nonprecedential, citable for persuasive value)
Court: U.S. Court of Appeals for the Tenth Circuit
Panel: Hartz, Moritz, and Rossman, Circuit Judges
Disposition: Affirmed convictions and sentence

Introduction

This appeal arises from a jury conviction of Paul Kenneth Cromar, a pro se defendant who advanced sovereign-citizen and tax-protester theories to contest federal taxing authority and criminal jurisdiction. He was convicted on two counts: (1) tax evasion under 26 U.S.C. § 7201; and (2) forcible rescue of seized property under 26 U.S.C. § 7212(b), after reoccupying a Utah property that had been seized and sold pursuant to a federal tax foreclosure. He was acquitted of obstruction under § 7212(a). The district court imposed a 72-month sentence and three years’ supervised release.

On appeal, Cromar raised four principal issues: (i) the district court lacked subject-matter jurisdiction, especially in light of the Supreme Court’s decision in Moore v. United States (2024); (ii) the evidence was insufficient on both counts; (iii) due process was violated through alleged misuse of Touhy and oral rulings; and (iv) restitution to the United States was improper because the government is not a “victim.”

The Tenth Circuit affirmed across the board. Although designated as an “Order and Judgment” not binding as circuit precedent, the decision offers persuasive clarification on several recurring questions in criminal tax prosecutions, especially in the post-Moore landscape, and addresses the evidentiary showing sufficient to prove a “seizure under Title 26” for the forcible-rescue statute and “substantial tax liability” for § 7201 using IRS audit evidence and substitute-for-return procedures.

Summary of the Judgment

Subject-matter jurisdiction: In criminal tax prosecutions, jurisdiction derives from 18 U.S.C. § 3231. Whether an income tax is a “direct” or “indirect” tax after the Sixteenth Amendment is immaterial to criminal jurisdiction. Moore v. United States (2024), which addressed the constitutionality of the Mandatory Repatriation Tax in a civil context, does not alter that rule.
§ 7212(b) (forcible rescue) sufficiency: The “seizure under this title” element was satisfied by a foreclosure order and sale undertaken under 26 U.S.C. § 7403 (with sale procedures under 28 U.S.C. § 2001). Title 28 procedures do not negate that the seizure occurred “under Title 26.”
§ 7201 (tax evasion) sufficiency: The government need not present a signed, filed tax return to prove “substantial tax liability.” IRS audit testimony and Form 4549, culminating in a Substitute for Return when the taxpayer fails to file, can suffice.
Due process claims: Undeveloped or conclusory arguments (including Touhy objections and complaints about oral rulings) do not warrant relief. The record showed witnesses identified by the defendant did, in fact, testify, and oral rulings are commonplace and adequately memorialized via minutes and transcripts.
Restitution: The United States can be a “victim” for restitution purposes.

Analysis

Precedents Cited and Their Role

United States v. Collins (10th Cir. 1990): Frequently invoked in tax-protester arguments, Collins collected authority rejecting claims that federal courts lack jurisdiction over tax crimes. Cromar attempted to leverage Collins’s wording about “direct” taxes in light of Moore; the panel reiterated that Collins’s bottom line—federal jurisdiction over tax crimes exists—remains sound, with any “direct/indirect” labels rendered immaterial post-Sixteenth Amendment. Collins has been superseded on other grounds by statute (Paperwork Reduction Act), but not on this jurisdictional point.
Moore v. United States, 602 U.S. 572 (2024): Moore addressed the Mandatory Repatriation Tax and discussed constitutional tax categories, observing that “indirect taxes … include … income taxes.” The Tenth Circuit held Moore inapposite to criminal jurisdiction: regardless of tax classification, § 3231 supplies jurisdiction for federal offenses, including tax crimes.
United States v. Tony (10th Cir. 2011): Reaffirmed that § 3231 ends the subject-matter jurisdiction inquiry in federal criminal prosecutions.
United States v. Stillhammer (10th Cir. 1983): Confirmed Congress’s power to tax income post-Sixteenth Amendment.
United States v. Oliver (10th Cir. 1970): Provided the elemental framework for § 7212(b)—the government must prove a seizure under Title 26 and a rescue.
United States v. Hoskins (10th Cir. 2011): Set out the three elements of tax evasion under § 7201: substantial tax liability, willfulness, and an affirmative act of evasion.
United States v. Thompson (10th Cir. 2008): Recognized the government’s frequent reliance on circumstantial evidence in tax-evasion cases.
United States v. Davis (10th Cir. 2021): Articulated the de novo standard for sufficiency-of-the-evidence review, emphasizing deference to jury inferences viewed in the light most favorable to the government.
United States v. Quarrell (10th Cir. 2002): Confirmed the government may qualify as a “victim” for restitution purposes.
Garrett v. Selby Connor Maddux & Janer (10th Cir. 2005) and Kelley v. City of Albuquerque (10th Cir. 2008): Clarified that even pro se litigants must adequately develop arguments; courts will not act as their counsel.
United States v. Walker (10th Cir. 2023) and United States v. Nelson (10th Cir. 2017): Reinforced forfeiture/waiver principles—new theories raised for the first time in a reply brief (or on appeal) generally are not considered; 10th Cir. R. 28.1(A) requires record citations showing where issues were raised below.

Legal Reasoning Applied

1) Subject-matter jurisdiction in criminal tax cases is grounded in § 3231. The court rejected Cromar’s argument that, after Moore’s discussion of tax classifications, federal courts lack jurisdiction over “non-apportioned direct income taxes.” The panel emphasized two pillars:

Section 3231 controls. “In every federal criminal prosecution, subject-matter jurisdiction comes from 18 U.S.C. § 3231.” That is dispositive.
Post-Sixteenth Amendment, the direct/indirect debate is immaterial to criminal jurisdiction. Whatever label applies to an income tax, Congress’s power to tax income is unquestioned, and criminal enforcement of federal tax laws lies within federal jurisdiction.

Moore’s civil holding about the MRT’s constitutionality does not undercut that analysis. Nor did the panel accept a late-breaking attempt to repackage the “direct/indirect” point into a willfulness defense; that theory was raised for the first time in reply and not preserved below.

2) § 7212(b) “forcible rescue” and what counts as a “seizure under this title.” Cromar argued that the government failed to prove a Title 26 seizure because real-property sale procedures were governed by Title 28 (28 U.S.C. § 2001). The court drew an important distinction:

Seizure authority and lien enforcement came from Title 26 § 7403. The foreclosure and judicial sale were conducted under § 7403; the district court’s order expressly invoked § 7403 and the federal tax liens, which arose by statute from Cromar’s liabilities.
Title 28 governs sale procedures, not the underlying seizure. The use of 28 U.S.C. § 2001 for how to sell real estate does not alter that the property had been seized under Title 26’s enforcement provisions.

The government introduced the foreclosure/judicial-sale order and IRS revenue-officer testimony explaining the liens and the § 7403 enforcement. That sufficed for a rational jury to find the “seizure under Title 26” element met. The record also supported “rescue,” as Cromar broke back in after removal and lock change; the tactical sandbags, weapons, and boards documented during the officers’ clearing of the property reinforced the “forcible” nature, though the defense did not principally contest that element on appeal.

3) § 7201 “substantial tax liability” without filed returns—Form 4549 and SFRs. Cromar contended the government improperly relied on IRS Form 4549 (an examination report) instead of “subscribed” tax returns. The court held:

No filed return is required to prove § 7201. Indeed, tax evaders often do not file. The element is “substantial tax liability,” not “existence of a signed return.”
Audit evidence and Substitute for Return are competent proof. The revenue agent described collecting bank and financial records, calculating deficiencies, advising Cromar of protest rights, and preparing a Substitute for Return when he did not file. That testimony and the underlying audit analysis allowed a rational juror to find substantial tax liability beyond a reasonable doubt.

The court’s approach aligns with longstanding recognition that circumstantial and administrative evidence may establish tax deficiency and evasion elements.

4) Due process and trial-management complaints. The court rejected several underdeveloped or unsupported claims:

Touhy/compulsory process: Cromar alleged improper reliance on Touhy to block subpoenas, but identified no specific witness or document denied. The record showed that named witnesses (e.g., Gary Chapman and Mr. Scambos) did testify, and Cromar examined them.
Oral rulings: There is no due process violation in resolving matters orally and memorializing them in minute entries and transcripts, especially in a multi-year case and a lengthy trial.
Jury instructions: No specific instruction was identified as erroneous or preserved, rendering the claim forfeited for lack of development.

5) Restitution to the United States. The court reaffirmed that the United States can be a “victim” eligible for restitution, referencing Quarrell. The panel did not need to parse MVRA/VWPA nuances because the categorical challenge failed.

Impact and Prospective Significance

Post-Moore jurisdictional attacks in criminal tax cases. The decision decisively rebuffs efforts to use Moore’s tax-classification discussion to undermine criminal jurisdiction. Defense arguments recasting apportionment or direct/indirect tax theory as jurisdictional are unlikely to succeed; § 3231 controls. Expect prosecutors to cite Cromar for the proposition that Moore is inapposite to criminal jurisdiction and that tax-classification debates do not defeat prosecutions under Title 26.
Clarifying “seizure under this title” for § 7212(b). This is a practical, prosecutorially useful clarification: a § 7403 foreclosure/judicial sale is a seizure “under Title 26,” even though federal sale procedures are found in Title 28. Future § 7212(b) cases can meet the seizure element with the § 7403 order, lien evidence, and revenue-officer testimony—without needing to prove a separate administrative levy or physical custody by the IRS at the moment of “rescue.”
Proving § 7201 without a filed return. The court reinforces that Form 4549, an IRS audit, and SFR procedures can establish “substantial tax liability.” This matters where defendants strategically avoid filing returns. The decision provides a roadmap for evidentiary presentation that can survive sufficiency review.
Appellate practice for pro se litigants. Cromar underscores that even liberally construed pro se briefs must adequately identify issues, cite the record, and develop arguments. New theories raised in a reply brief will not be entertained absent exceptional circumstances.
Restitution posture. The reaffirmation that the federal government is a “victim” preserves routine restitution awards in tax and related offenses.
Limitations. The decision is nonprecedential under Tenth Circuit rules, though citable for persuasive value. It does not resolve the full scope of Moore in other contexts, nor does it explore nuanced questions about the “forcible” element of § 7212(b) where force is contested, or the interplay between administrative levies (§ 6331) and judicial foreclosures (§ 7403) in different factual settings.

Complex Concepts Simplified

18 U.S.C. § 3231: The statute that gives federal district courts jurisdiction over all federal crimes. If a defendant is charged with violating a federal criminal law, § 3231 supplies subject-matter jurisdiction—period.
Direct vs. indirect taxes; apportionment: The Constitution historically treated “direct” taxes (on people or property) differently from “indirect” taxes (on activities/transactions), with “direct” taxes requiring apportionment among the states. After the Sixteenth Amendment, Congress may tax income without apportionment. For criminal-tax jurisdiction, the direct/indirect label is not outcome-determinative.
Moore v. United States (2024): A civil case about the constitutionality of the Mandatory Repatriation Tax. It did not concern criminal jurisdiction. Defendants cannot rely on Moore to defeat federal criminal jurisdiction over tax crimes.
26 U.S.C. § 7403: Allows the United States to bring a civil action to enforce tax liens and to sell property to satisfy tax debts. A court’s foreclosure and sale order under § 7403 constitutes a seizure “under Title 26” for purposes of the forcible-rescue crime.
28 U.S.C. § 2001: Provides procedures for selling real property under federal court orders (e.g., public sale, notice). It does not change the legal source of the seizure; it dictates how the sale occurs.
26 U.S.C. § 7212(b) (“forcible rescue”): Makes it a crime to forcibly retake property that has been seized under the Internal Revenue Code. The core elements are (1) a seizure under Title 26; and (2) a rescue (taking back) accomplished forcibly.
26 U.S.C. § 7201 (tax evasion): Requires proof of (i) a substantial tax liability; (ii) willfulness; and (iii) an affirmative act of evasion. A filed, signed tax return is not required to prove liability; the government may use audits, bank records, and SFRs.
Form 4549 and Substitute for Return (SFR): Form 4549 is an IRS examination report setting out proposed tax changes. When a taxpayer fails to file, the IRS may prepare an SFR to compute tax. Although not a “return” filed by the taxpayer, this evidence can establish substantial liability in a criminal case.
Touhy (United States ex rel. Touhy v. Ragen): Addresses agency regulations governing how and when federal employees comply with subpoenas. A defendant must identify specific evidence improperly withheld and show prejudice; blanket Touhy complaints will fail.
Standard of review—sufficiency of the evidence: The appellate court reviews de novo but views all evidence and reasonable inferences in the government’s favor. The question is whether a rational jury could find guilt beyond a reasonable doubt.
Nonprecedential decisions: An “Order and Judgment” in the Tenth Circuit is nonbinding except for law-of-the-case, res judicata, and collateral estoppel. It may be cited for persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Additional Observations and Practice Notes

Evidence for § 7212(b): To establish “seizure under this title,” prosecutors should introduce the § 7403 foreclosure order, tax-lien evidence, and revenue-officer testimony explaining the Title 26 enforcement path. Title 28 sale documents are helpful context but not a substitute for showing the Title 26 basis.
Proving § 7201 without returns: Build the record with authenticated bank records, third-party information statements, audit methodologies, and testimony about SFR triggers and taxpayer protest rights. This strengthens both the “substantial liability” and “affirmative act” theories.
Defending willfulness: If relying on “good-faith misunderstanding,” Cheek-style arguments must be preserved in the district court, with record citations and proposed instructions. Raising new, nuanced willfulness theories for the first time on appeal—especially in a reply brief—invites forfeiture.
Appellate briefing discipline: Identify each challenged ruling, cite where the issue was raised and decided (10th Cir. R. 28.1(A)), and explain prejudice. Generalized or perfunctory assertions will not preserve issues for review.
Clerical note: The appellate caption’s passing reference to “21 U.S.C. § 7212(c)” appears to be a scrivener’s error. The opinion and record consistently treat the forcible-rescue count as arising under 26 U.S.C. § 7212(b), the Internal Revenue Code.

Conclusion

United States v. Cromar provides clear, practical guidance in three areas of recurring importance in criminal tax litigation:

Jurisdiction: Criminal tax prosecutions rest on 18 U.S.C. § 3231. Moore’s civil treatment of tax categories does not upend federal criminal jurisdiction, and post-Sixteenth Amendment labels (direct vs. indirect) are immaterial to that question.
Forcible rescue—what is a “Title 26 seizure”: A foreclosure/judicial sale under 26 U.S.C. § 7403 qualifies as a seizure “under this title,” even when Title 28 governs how the sale is conducted. This resolves a common defense contention and streamlines proof for § 7212(b).
Proving tax evasion without a filed return: IRS audit testimony, Form 4549, and SFR processes can establish substantial tax liability for § 7201. The absence of a taxpayer-signed return is not fatal to the government’s case.

The decision also reinforces ordinary appellate practice requirements—especially for pro se litigants—and reaffirms the permissibility of restitution to the United States as a victim. While nonprecedential, it is a thorough and timely reaffirmation of core principles in the post-Moore era and a useful roadmap for future prosecutions and defenses in the Tenth Circuit and beyond.