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United States v. Tishberg

decided: August 24, 1988.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
MARK S. TISHBERG, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Eastern District of Wisconsin. No. 87 CR 51 -- Terence T. Evans, Judge.

Posner, Coffey, Circuit Judges, and Will, Senior District Judge.*fn*

Author: Will

WILL, Senior District Judge. Mark S. Tishberg, ("Tishberg") defendant-appellant, was indicted on three counts of tax evasion, violations of 26 U.S.c. ยง 7201, for filing false tax returns (failing to disclose a portion of his total income) for the years 1982, 1983 and 1984. At the conclusion of the government's case, Judge Evans denied Tishberg's motion for judgment of acquittal. The jury convicted him on all three counts. He was sentenced to 30 days incarceration to be followed by two years probation, fined $15,000 and assessed costs. Tishberg appeals his conviction, arguing that there was insufficient evidence to support the jury's verdict. We affirm.

Facts

The relevant facts are undisputed. Tishberg was employed by Towne Realty, Inc. from 1972, when he was age 23, through the tax years in question. In September 1984, he left to attend law school on a full-time basis. From 1973 through 1984, Tishberg worked for Towne Realty's insurance department which operated as a sole proprietorship under the name Joda Services. The defendant's father was the President of Towne Realty, Inc.

Joda Services did not have a separate payroll. Instead, employees were normally paid with checks drawn on the accounts of Towne Realty or one of its related companies: Unicare Services, Inc., Job Lot, Inc. and Zilber Services, Inc. Tishberg received salary checks and expense reimbursements from more than one company.

Tishberg asked for and was granted a raise in his salary for 1982, and later for 1983 and 1984. The raise was granted by Ervin Daskow, Towne Realty's Insurance Director, and approved by Tishberg's father. In order to conceal this increase from other Towne Realty employees, Tishberg received his additional salary with checks drawn on Joda Services' bank account.

Other than during March 1982, Tishberg received two salary checks per month from Towne Realty and Unicare Services during 1982 in the amounts of $1,034.38 or $1,046.53, reflecting his net base salary. Tishberg deposited the checks into any one of the three bank accounts he and his wife maintained. He also received and deposited $10,000.00 from Joda Services in 1982, in monthly checks of $500.00 or $1,000.00, representing his additional salary.

Tishberg and his wife filed a joint tax return (which they prepared without assistance) in 1982. On their IRS 1040, they listed total compensation of $34,873.00 and appended two W-2 statements, one from Unicare showing income of $6,344.00 and one from Towne Realty showing income of $28,528.78. The $10,000.00 in additional salary received from Joda Services was not reported on the 1982 federal tax return. Joda Services did not provide Tishberg with a W-2 statement or any statement reflecting the additional income earned and received in 1982. In addition, no withholdings were made from these payments during 1982.*fn1

In 1983, Tishberg received salary checks twice a month from Towne Realty in an amount between $1,046.53 and $1,096.93, again representing his net base salary. He also received checks from Joda Services each month in the amount of $1,000.00 or $1,500.00, totalling $14,000.00, representing his additional salary. In 1984, Tishberg received salary checks twice a month from Towne Realty or Zilber Limited in amounts in excess of $1,096.00. He also received one check in the amount of $213.70. Again, in 1984, he received monthly checks from Joda Services, totalling $13,500.00, representing his additional salary. Tishberg only worked for nine months during 1984. All checks received in 1983 and 1984 were deposited into the same three accounts maintained by him and his wife.

Tishberg and his wife filed joint tax returns (again prepared without assistance) in 1983 and 1984. Like their 1982 return, these returns did not reflect Tishberg's additional salary received from Joda Services. The 1983 IRS Form 1040 reported net income of $35,394.64 and the 1984 Form 1040 reported net income of $47,328.36. Tishberg's net income in 1983 including the salary from Joda Services actually totalled $49,394.64. This same figure for 1984 was $60,828.36. Appropriate W-2 statements received from Towne Realty and Zilber Services were appended to the 1983 and 1984 returns.*fn2 W-2 statements reflecting income from Joda Services were not received by Tishberg, nor were they sent to the IRS. Likewise, no withholdings were made from the additional income during 1983 and 1984.*fn3

There is conflicting evidence as to Tishberg's intelligence and particularly what accounting and finance skills he possesses. It is undisputed, however, that he had attended college, obtained a bachelor of business administration (BBA) degree in accounting, worked briefly as a junior accountant with a public accounting firm after college and started in 1972 in the accounting department of Towne Realty. After leaving Joda Services in September 1984, he successfully completed three years of law school. There is no suggestion, therefore, that he is incompetent or was unaware of his duty to file accurate and truthful tax returns.

Tishberg received a letter from IRS agent Lynn Miller in 1985 indicating that his 1983 tax returns were being audited. He attended a meeting in her office to which he brought requested documents. There is a dispute as to Tishberg's reaction when Miller showed him copies of the Joda Services checks and asked him why this income was not reported. Specifically, the parties disagree on whether Tishberg admitted that he had knowingly omitted income from his tax return or was surprised and indicated he would ...


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