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Sentencing

Probation Too Cushy for Tax Evader

Posted Aug 23, 2007 5:39 AM CDT
By Debra Cassens Weiss

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A federal appeals court has ruled that the owner of a construction company who evaded personal income taxes on his luxurious home should have received a prison sentence.

The opinion by the 3rd U.S. Circuit Court of Appeals weighs the meaning of the Supreme Court opinion United States v. Booker, which said appellate courts may review sentences for “reasonableness,” the Legal Intelligencer reports.

Judge D. Michael Fisher wrote in the 2-1 panel opinion (PDF) that "reasonableness review, while deferential, is not utterly impotent."

The defendant, William Tomko, had received a sentence of probation, home confinement and a $250,000 fine. He pleaded guilty to tax evasion for instructing workers who built his home to bill his company for the work. The company illegally deducted the expenses and Tomko failed to report the value of the work performed as income, the opinion said.

Fisher wrote that the sentence sent the wrong message to the public and would-be tax violators. "Tomko's sentence of probation included home confinement in the very mansion built through the fraudulent tax evasion scheme at issue in this case—an 8,000-square-foot house on approximately eight acres, with a home theater, an outdoor pool and sauna, a full bar, $1,843,500 in household furnishings, and $81,000 in fine art," Fisher said.

A dissenter said the majority did not give the sentencing judge proper deference. The role of an appeals court, wrote Judge D. Brooks Smith, is to ensure the trial judge meaningfully considered the appropriate factors specified by sentencing laws.

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