For the year 2000, the government used the amount of tax lawfully assessed by the IRS. 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff, Case 2:08-cr-20585-GER-DAS

 v. 

D-1 PETER HENDRICKSON, VIO: 26 U.S.C. § 7206(1)

Defendant.

_________________________________/

GOVERNMENT’S RESPONSE TO DEFENDANT’S POST SENTENCING MOTION

 The United States Attorney for the Eastern District of Michigan, by and through the

undersigned attorneys, respectfully submits this memorandum in opposition to Defendant’s post

sentencing motion. With the exception of the argument regarding restitution, the defendant

repeats and rehashes numerous arguments that the Court previously rejected. As such, it should

be deemed a motion for reconsideration governed by Local Rule 7.1(h). Under that rule, the

government is not required to respond and will not do so, unless ordered by the Court. 

The sole issue of relevance is the defendant’s claim that for purposes of restitution he

should be given credit for exemptions and deductions that he did not take on the false returns that

he filed with the IRS. Def. Memo., p. 7. Such is not the case. As a matter of context, for the

years 2002 through 2006 the government calculated restitution based on the returns filed by the

defendant. That is, if a married defendant with children files a return under the status “married 1

filing separately” and elects not to take exemptions or deductions, the government treats that as a

Case 2:08-cr-20585-GER-DAS Document 99 Filed 05/16/10 Page 1 of 4
2

strategic choice by the defendant and does not overrule it. Such a calculation is the most

concrete, reliable and fair as it neither makes presumptions nor draws inferences.

The Court should turn a deaf ear to the defendant’s retrospective claim for such

exemptions and deductions. Taxpayers have no “right” to deductions and exemptions. Rather,

they are the product of legislative grace. Weingarden v. C.I.R., 825 F.2d 1027, 1029 (6 Cir. th

1987) (“[P]rovisions granting a deduction or exemption are matters of legislative ‘grace’ and are

construed strictly (in favor of the government).”). As evidenced by past practice and his

memorandum, the defendant’s failure to take the deductions and exemptions was not the product

of either ignorance or mistake. Rather, he made a deliberate election to forgo them. Now that

the defendant has been convicted and compelled to repay the government the taxes he owed, he

should not be permitted to reduce his liabilities by conjuring a return that he did not file. See

United States v. Yip, 592 F.3d 1035 (9 Cir. 2010). For that reason, the Court should adopt the th

government’s restitution figures.

Case 2:08-cr-20585-GER-DAS Document 99 Filed 05/16/10 Page 2 of 4
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Respectfully submitted,

BARBARA MCQUADE

UNITED STATES ATTORNEY

Date: May 16, 2010 By: _______/s/_____________

Michael Leibson

Assistant U.S. Attorney

211 W. Fort Street, suite 2001

Detroit, MI 48226

(313) 226-9100

Michael.leibson@usdoj.gov

_______/s/_____________

 Mark F. Daly

MA Bar No. 640581

Trial Attorney

United States Department of Justice, Tax Division

P.O. Box 972

Washington, DC 20530

Tel: (202) 514-5150

Fax: (202) 616-1786

Mark.F.Daly@usdoj.gov

Case 2:08-cr-20585-GER-DAS Document 99 Filed 05/16/10 Page 3 of 4
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CERTIFICATE OF SERVICE

This is to certify that on May 16, 2010, an original copy of the Government’s Response to

Defendant’s Post Sentencing Motion was filed with the U.S. District Court for the Eastern

District of Michigan and served on counsel for the defendant by filing the same with the

Electronic Case Filing system.

_______/s/____________

Mark F. Daly

Trial Attorney

Case 2:08-cr-20585-GER-DAS Document 99 Filed 05/16/10 Page 4 of 4