The 433 Omission That Became Felony Evasion

What Aumiller Should Warn You About Before the Next 433 Goes Out

If a client owes back taxes and is tempted to leave an account off Form 433-A or 433-B, the Third Circuit just gave the IRS a clean, published roadmap for turning that omission into a felony conviction. United States v. Aumiller, No. 24-2742 (3d Cir. July 1, 2026), isn't a case about failing to pay taxes. It's a case about what happens when a taxpayer tries to make a payment problem invisible — and it should change how carefully every collection information statement gets reviewed before it's signed.

The Line the IRS Now Has Case Law to Enforce

IRM 25.1.1.3.3 draws a bright line between avoidance (legal) and evasion (not): evasion requires "some affirmative act to evade or defeat a tax, or payment of tax" — deceit, concealment, an attempt to make things "seem other than they are." Simply owing money and being slow to pay does not cross that line. IRM 25.1.8, which governs Field Collection's fraud development, says so explicitly: refusing to pay, or even sitting on funds needed to pay, "without more," does not meet the affirmative-act threshold for felony evasion.

The warning is in the "more." IRM 25.1.1.4 lists concealment of bank accounts as a textbook example of an affirmative act — and that is precisely what closed the door on Aumiller's defense. He argued that simply failing to report an account to the IRS isn't an affirmative act. The Third Circuit rejected that argument on facts that should worry every practitioner prepping a CIS: Aumiller didn't just stay quiet — he signed and submitted Forms 433-A and 433-B that affirmatively omitted personal and business accounts at M&T Bank. The court distinguished this from United States v. McGill, where the taxpayer's account wasn't concealed "apart from" the omission of mention. Once a client puts pen to a sworn financial statement, silence becomes a statement, and a false statement is the act.

What This Exposes a Client To

Under IRC 7201, felony tax evasion requires willfulness, an attempt to evade or defeat tax or its payment (usually through concealment or deception), and a tax deficiency (Exhibit 25.1.1-1). Aumiller was convicted on both counts and now faces up to five years in prison on each. The tax loss attributed to his broader concealment scheme — nominee accounts, structured real estate deals, and the false 433s — reached $478,270. That is the outcome, an incomplete collection information statement can now be Exhibit A for.

Two more warnings buried in the opinion deserve attention:

• The clock doesn't protect old debt. The court held that the six-year statute of limitations for evasion runs from the last affirmative act charged — not from when the tax was first assessed. A client with a decade-old liability isn't safe if the false form was filed within the last six years. Old debt, recent form, live felony exposure.
• The referral threshold is low and institutionalized. IRM 5.1.33, Field Collection's current fraud development procedure (effective March 2024), requires that once "firm indications of fraud" are identified, the referral package to Criminal Investigation must include "an explanation of the affirmative acts taken by the taxpayer." A false or incomplete 433 is now a documented, IRM-anticipated data point in exactly that referral. This isn't a gray area the RO has to think hard about — it's a checkbox in the fraud development workflow.

A Related Trap: Someone Else Signing the Form

IRM 25.1.8 separately flags a red flag worth watching for: a Form 433-A or 433-B completed and signed by someone other than the taxpayer. If that happens — a spouse, bookkeeper, or representative filling in and signing on the client's behalf without the client's full, verified input — it compounds the same exposure. Every number and every account on that form needs to be traceable to the client's own knowledge and signature.

What I'd Tell a Client Before They Sign

If a client is reluctant to disclose an account, that reluctance is the moment to intervene — not the moment to quietly leave a line blank. One practitioner summed up the distinction cleanly: the difference between a civil problem and a criminal one is "can't pay" versus "won't pay, and trying to hide." A client who is broke and disclosed is a collection case. A client who is broke and concealing is a potential Form 2797 referral.

Practically, that means every 433 I prepare gets bank statements cross-checked against every account listed before it goes out the door — not because I assume a client is lying, but because Aumiller is now the case the government cites when a client's memory turns out to have been convenient.