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United States v. Larkin

United States District Court, D. Nevada

January 24, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MARIA LARKIN, Defendant.

          ORDER RE: MOTION TO STRIKE SURPLUSAGE FROM SECOND SUPERCEDING INDICTMENT (ECF NO. 145)

          GEORGE FOLEY, JR. United States Magistrate Judge

         This 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.

         BACKGROUND

         The 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.

         Paragraph 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 .

         Count 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 nominee; and
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.

         Second Superceding Indictment (ECF No. 135), ¶ 15.

         Defendant 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 ...


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