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U.S. v. BURDETT

July 30, 1991

UNITED STATES OF AMERICA, PLAINTIFF,
v.
WARREN J. BURDETT, DEFENDANT.



The opinion of the court was delivered by: Wexler, District Judge.

MEMORANDUM AND ORDER

Defendant Warren J. Burdett ("defendant" or "Burdett") moves to dismiss the counts of his indictment which charge him with knowingly and willfully attempting to evade income taxes, pursuant to 26 U.S.C. § 7203, owed for the years 1984 and 1985. Burdett alleges that the Internal Revenue Service ("IRS") failed to comply with the Paperwork Reduction Act of 1980 ("PRA" or "the Act"), 44 U.S.C. § 3501, et seq., by not displaying Office of Management and Budget ("OMB") control numbers or expiration dates on its Form 1040 instruction booklet and implementing regulations. For the reasons set forth below, this Court finds defendant's contentions to be without merit.

The PRA

The PRA was designed "to reduce and minimize the burden Government paperwork imposes on the public." S.Rep. No. 930, 96th Cong., 2d Sess. 2, reprinted in 1980 U.S. Code Cong. & Admin. News 6241, 6242 [hereinafter S.Rep. No. 930]. As codified at 44 U.S.C. § 3501, the purposes of the Act are:

    (1) to minimize the Federal paperwork burden
  for individuals, small businesses, State and
  local governments, and other persons;
    (2) to minimize the cost to the Federal
  Government of collecting, maintaining, using, and
  disseminating information;
    (3) to maximize the usefulness of information
  collected, maintained, and disseminated by the
  Federal Government;
    (4) to coordinate, integrate and, to the extent
  practicable and appropriate, make uniform Federal
  information policies and practices;
    (5) to ensure that automatic data processing,
  telecommunications, and other information
  technologies are acquired and used by the Federal
  Government in a manner which improves service
  delivery and program management, increases
  productivity, improves the quality of
  decisionmaking, reduces waste and fraud, and
  wherever practicable and appropriate, reduces the
  information processing burden for the Federal
  Government and for persons who provide
  information to and for the Federal Government;
  and
    (6) to ensure that the collection, maintenance,
  use and dissemination of information by the
  Federal Government is consistent with applicable
  laws relating to confidentiality, including
  section 552a of title 5, United States Code,
  known as the Privacy Act.

44 U.S.C. § 3501; see, generally, Dole v. United Steelworkers, 494 U.S. 26, 110 S.Ct. 929, 108 L.Ed.2d 23 (1990).

Under the Act, a federal agency must submit to the Director of the OMB any "written report form, application form, schedule, questionnaire, reporting or recordkeeping requirement, collection of information requirement or other similar method calling for the collection of information [from the public]." 44 U.S.C. § 3502(11), 3507. These forms and requirements are known throughout the Act as "information collection requests." The Director of the OMB must approve or reject the agency's proposed information collection request within sixty days of receiving it.*fn1 Id. at § 3507(b). If the Director approves the request, he must assign it a control number. Id. at § 3504. An agency may not engage in the collection of information unless the Director has assigned a control number to the appropriate form.*fn2 Id. at § 3507(f). This number must be displayed in the upper right hand corner of the front page of the form. Id.; see also 5 C.F.R. § 1320.7(e)(1).

Federal income tax forms were among the many paperwork burdens imposed on the public which the PRA was created to alleviate. S.Rep. No. 930 at 2; see also, Dole v. United Steelworkers, 494 U.S. 26, 110 S.Ct. 929, 108 L.Ed.2d 23 (1990); United States v. Collins, 920 F.2d 619, 630 (10th Cir. 1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2022, 114 L.Ed.2d 108 (1991). Accordingly, in 1981, the Treasury Department submitted approximately 700 IRS forms to the OMB for approval and assignment of control numbers. Alexander, Review of Tax Regulations and Rulings by The Office of Management and Budget (by the Committee on Tax Policy of the New York State Bar Association Tax Section), Tax Notes October 3, 1983 at 6. It is to be noted that in the case at bar, the tax return forms that Burdett failed to file — the IRS's 1040 forms for 1984 and 1985 — displayed OMB numbers as required by the Act.

Defendant argues that the Internal Revenue Service failed to comply with the Paperwork Reduction Act in that the IRS Form 1040 instruction booklets and implementing regulations do not display OMB control numbers and expiration dates. In particular, he cites the "public protection" provision of the PRA and United States v. Smith, 866 F.2d 1092 (9th Cir. 1989), in support of the theory that noncompliance by a federal agency with the PRA precludes the government from imposing civil or criminal penalties on ...


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