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Brian Valcarce

Abstract

The omnibus clause of 26 U.S.C. § 7212(a) is a catch-all provision that broadly punishes people who corruptly endeavor to obstruct administration of the Internal Revenue Code. The Sixth Circuit, in United States v. Kassouf, improperly limited conviction under the omnibus clause to cases where the defendant had knowledge of a pending IRS investigation (a nexus test). The Sixth Circuit is the only circuit today applying this rule, with most others expressly or impliedly rejecting it. Even though the Sixth Circuit is an outlier in applying a nexus test, there has been pervasive discussion of the issue recently. There has been a significant increase in circuit court decisions with some judges and commentators staunchly opposing the majority view. Those in opposition to the majority argue that a nexus test is necessary to limit the IRS from abusing a statute that could expand to criminalizing any wrong act in a tax setting as a felony. Recent claims of the IRS abusing its power lend particular weight to this fear of statutory overreach. In fact, after the original draft of this article was written, the Supreme Court granted certiorari in Marinello v. United States and heard oral argument on this very issue in December 2017. This Comment argues that § 7212(a) is unambiguous and contains no statutory requirement of a nexus test. It recommends how the Supreme Court should resolve the issue, by limiting omnibus clause charges to affirmative acts just as other Title 26 felonies are limited. It further argues why Congress should act expediently to modify § 7212(a). Limiting the omnibus clause beyond its plain meaning is necessary for fair notice and to prevent felony charges for action meant to be punished as a misdemeanor. Congressional action is sorely needed in this area of the law where the stakes are high.

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