Witaschek v. District of Columbia


Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. DISTRICT OF COLUMBIA COURT OF APPEALS No. 19-CT-165 MARK A. WITASCHEK, APPELLANT, V. DISTRICT OF COLUMBIA, APPELLEE. Appeal from the Superior Court of the District of Columbia (CRT-4321-18) (Hon. Darlene M. Soltys, Trial Judge) (Argued April 13, 2021 Decided July 22, 2021) Howard X. McEachern, with whom Bruce Fein, was on the brief, for appellant. John D. Martorana, Assistant Attorney General, with whom Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Caroline S. Van Zile, Principal Deputy Solicitor General, and Carl J. Schifferle, Deputy Solicitor General, were on the brief, for appellee. Thais-Lyn Trayer also entered an appearance. Before GLICKMAN, THOMPSON, and MCLEESE, Associate Judges. THOMPSON, Associate Judge: Appellant Mark A. Witaschek challenges his conviction, after a bench trial, of two counts of attempting to evade or defeat tax 2 (for tax years 2011 and 2012). See D.C. Code § 47-4101 (2015 Repl.). For the reasons that follow, we affirm the judgment of conviction. I. In the midst of an “acrimonious” divorce, appellant’s (then soon-to-be) ex- wife provided tax and financial information about appellant to District of Columbia (“District”) officials, resulting in a February 2014 referral to the District’s Office of Tax and Revenue (“OTR”). OTR Special Agent James Hessler interviewed appellant’s ex-wife, who provided information about appellant’s residency from 2009 through 2013. Appellant’s ex-wife also provided bank records for bank accounts held either jointly by the couple or solely by appellant. Comparing this information with appellant’s tax returns, Agent Hessler questioned appellant’s claim on his 2011 and 2012 income tax returns that he was only a part-year resident of the District (a claimed status that resulted in a substantial reduction of his District taxable income). 1 Agent Hessler therefore initiated a criminal tax investigation of appellant for tax years 2009 through 2013. 1 When appellant filed his 2011 Form D-40 tax return, he subtracted $326,326 from his $423,020 in total income because he purportedly obtained the former amount during a period of non-residence that he alleged to have spent in (continued…) 3 Agent Hessler arranged to interview appellant in April 2014. On the appointed date, appellant’s attorney appeared instead. The attorney explained appellant’s part-year residency claim for tax years 2009–2013 by providing a packet of materials entitled “Proper Reporting by Mark Witaschek of 2011-2012 Income Based on Principle [sic] Residence/Domicile,” which contained spreadsheets that provided dates and addresses relating to time that appellant allegedly spent outside the District, in New Hampshire. In order to verify the information the attorney provided, and pursuant to D.C. Code § 47-4310(a)(1) (2015 Repl.), Agent Hessler crafted twenty-six summonses to third parties for bank, investment, residential, real estate, employment, school, and other records. After the inception of this criminal case (in which appellant was …

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