United States District Court, D. Nevada
ORDER RE: MOTION TO STRIKE SURPLUSAGE FROM SECOND
SUPERCEDING INDICTMENT (ECF NO. 145)
FOLEY, JR. United States Magistrate Judge
matter is before the Court on Defendant's Motion to
Strike Surplusage from Second Superceding Indictment (ECF No.
145), filed on December 22, 2016. The Government filed its
Opposition (ECF No. 150) on January 5, 2017 and Defendant
filed her Reply (ECF No. 156) on January 12, 2017. The Court
conducted a hearing in this matter on January 20, 2017.
second superceding indictment (hereinafter the
“indictment”) charges Defendant Maria Larkin with
tax evasion in violation of 26 U.S.C. § 7201. Second
Superceding Indictment (ECF No. 135). Paragraphs 1 and 2
of the indictment allege that Five Star Home Health Care,
Inc. (“FSHHC”) was a business providing home
health care and was owned and operated by Defendant Larkin
from 1996 through 2009. Paragraphs 3-5 generally describe the
Internal Revenue laws that require employers to withhold
income, Social Security and Medicare taxes (“Trust Fund
Taxes”) from employee wages and pay them over to the
IRS. Every employer has at least one person who is
responsible for collecting, accounting for and paying over
the Trust Fund Taxes. If that responsible person willfully
fails to pay over the Trust Fund Taxes, she is personally
liable to pay a Trust Fund Recovery Penalty eq ual to the
amount of the Trust Fund Taxes.
6 of the indictment alleges that FSHHC was required to make
deposits of Trust Fund Taxes to the IRS on a periodic basis.
Paragraph 7 alleges that Defendant Larkin was responsible for
collecting, accounting for and paying over Trust Fund Taxes
on behalf of FSHHC. Paragraph 8 alleges that for the years
2004 through 2009, FSHHC withheld Trust Fund Taxes that Ms.
Larkin willfully failed to pay over to the IRS. Paragraph 9
alleges that in 2008, the IRS assessed Trust Fund Recovery
Penalties against Ms. Larkin for the years 2004 through 2007,
and that she subsequently paid the Trust Fund Recovery
Penalty for the quarter ending on December 31, 2004.
Paragraph 10 alleges that on or about March 20, 2010, Ms.
Larkin signed a report of interview Form 4180, acknowledging
that she was are responsible person who willfully failed to
pay over Trust Fund Taxes for F S HHC from Januar y 2004
through December 2009. Paragraph 11 alleges that on or about
June 16, 2010, Ms. Larkin signed a Proposed Assessment of
Trust Fund Recovery Penalty (Form 2751) consenting to the
assessment and collection of the Trust Fund Recovery
Penalties for the last three quarters of 2008 and all of 2009
in the aggregate amount of $541, 431. Paragraph 12 alleges
that on or about September 13, 2010, the IRS assessed
additional Trust Fund Recovery Penalties against Defendant
Larkin for the last three quarters of 2008 and all of 2009 in
the aggregate amount of $541, 431. Paragraph 13 alleges that
as of the date of the filing of the superceding indictment,
Ms . Larkin owed and had willfully failed to pay Trust Fund
Recovery Penalties in excess of $1.6 million .
One of the indictment alleges that Defendant Larkin willfully
attempted to evade and defeat the payment of Trust Fund
Recovery Penalties due and owing by her to the United States
of America, by concealing and attempting to conceal her
access to personal funds and assets from the IRS through
acts, including, but not limited to the following:
a. Engaging in currency transactions with financial
institutions in amounts less than $10, 000 to prevent
financial institutions from filing currency transaction
reports disclosing that she had possession of substantial
amounts of currency;
b. Purchasing a home in the name of a nominee;
c. Dealing extensively in cash, including causing checks to
be drawn on a business bank account payable to certain
individuals and directing those individuals to cash the
checks and deliver the funds to her;
d. Changing the name of FSHHC to Five Star Healthcare, LLC;
e. Putting Five Star Healthcare, LLC in the name of a
f. Providing false information to the IRS regarding
FSHHC's ability to pay Trust Fund Taxes and her ability
to pay Trust Fund Recovery Penalties.
Superceding Indictment (ECF No. 135), ¶ 15.
argues that paragraphs 3 through 13 of the indictment are
“surplusage ” that should bestricken from the
indictment pursuant to Rule 7 of the Federal Rule s of
Criminal Procedure. While acknowledging that these paragraphs
do not state the elements of tax evasion under 26 U.S.C.
§ 7201, the Government argues that the paragraphs are