The Ninth Circuit Says Aloha to Boulware - Again

9 Pages Posted: 28 Sep 2009

See all articles by Scott A. Schumacher

Scott A. Schumacher

University of Washington - School of Law

Date Written: March 30, 2009


In United States v. Boulware, the Ninth Circuit addressed the return of capital defense in a corporate diversion prosecution. The court held that the question of intent cannot be part of the determination whether a payment is a return of capital. However, the court left open the questions of whether a criminal defendant should be required to make any proffer to negate an element of an offense and, if so, what sort of proffer would be required. This article discusses the fundamental questions raised by this decision in tax and other white collar criminal prosecutions.

Keywords: tax evasion, return of capital defense, burden of proof

JEL Classification: H24, H25, H26, K14

Suggested Citation

Schumacher, Scott A., The Ninth Circuit Says Aloha to Boulware - Again (March 30, 2009). Tax Notes, Vol. 122, No. 1631, 2009, Available at SSRN:

Scott A. Schumacher (Contact Author)

University of Washington - School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States


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