U.S.S.G. §2T1.4

(a) Base Offense Level:

(1) Level from §2T4.1 (Tax Table) corresponding to the tax loss; or

(2) 6, if there is no tax loss.

For purposes of this guideline, the “tax loss” is the tax loss, as defined in

§2T1.1, resulting from the defendant’s aid, assistance, procurance or advice.

(b) Specific Offense Characteristics

(1) If (A) the defendant committed the offense as part of a pattern or

scheme from which he derived a substantial portion of his income; or

(B) the defendant was in the business of preparing or assisting in the

preparation of tax returns, increase by 2 levels.

(2) If the offense involved sophisticated means, increase by 2 levels. If the

resulting offense level is less than level 12, increase to level 12.

Commentary

Statutory Provision: 26 U.S.C. § 7206(2) (other than a violation based upon 26 U.S.C. § 6050I).

Application Notes:

1. For the general principles underlying the determination of tax loss, see §2T1.1(c) and Application

Note 1 of the Commentary to §2T1.1 (Tax Evasion; Willful Failure to File Return, Supply Information, or Pay Tax; Fraudulent or False Returns, Statements, or Other Documents). In certain

instances, such as promotion of a tax shelter scheme, the defendant may advise other persons to

violate their tax obligations through filing returns that find no support in the tax laws. If this

type of conduct can be shown to have resulted in the filing of false returns (regardless of whether

the principals were aware of their falsity), the misstatements in all such returns will contribute

to one aggregate “tax loss.”

2. Subsection (b)(1) has two prongs. The first prong applies to persons who derive a substantial

portion of their income through the promotion of tax schemes, e.g., through promoting fraudulent

tax shelters. The second prong applies to persons who regularly prepare or assist in the preparation of tax returns for profit. If an enhancement from this subsection applies, do not apply

§3B1.3 (Abuse of Position of Trust or Use of Special Skill).

3. Sophisticated Means.—For purposes of subsection (b)(2), “sophisticated means” means especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense. Conduct such as hiding assets or transactions, or both, through the use of

fictitious entities, corporate shells, or offshore financial accounts ordinarily indicates sophisticated means.

Background: An increased offense level is specified for those in the business of preparing or assisting

in the preparation of tax returns and those who make a business of promoting tax fraud because their

misconduct poses a greater risk of revenue loss and is more clearly willful. Other considerations are

similar to those in §2T1.1.