7th Circuit Upholds "Summary" Testimony from IRS Expert

The Seventh Circuit published a decision yesterday upholding "summary" testimony from an IRS agent in a tax evasion trial. From the opinion:

We believe Agent Welch primarily testified within his role as a summary witness. However, we acknowledge that, in such a case as the present, where an IRS Revenue Agent summarizes the evidence for purposes of establishing the tax consequences, the line between summary testimony and expert testimony is indistinct. Given the assistance such an individual can provide to the jury, it has not been unusual in previous cases for an IRS agent to testify as an "expert summary witness." See United States v. Moore, 997 F.2d 55, 58 (5th Cir. 1993); United States v. Mohney, 949 F.2d 1397, 1406 (6th Cir. 1991); United States v. Bosch, 914 F.2d 1239, 1242 (9th Cir. 1990); United States v. Dotson, 817 F.2d 1127, 1132 (5th Cir.), vacated in part on reh'g., 821 F.2d 1034 (5th Cir. 1987); see also United States v. Benson, 941 F.2d 598, 615 (7th Cir. 1991) (Kanne, J., dissenting) ("A summary witness need not necessarily be an expert, but experts in accounting and other disciplines regularly give summary evidence of the sort envisioned by Federal Rule of Evidence 1006." (citing 5 D. Louisell & C. Mueller, Federal Evidence § 599, at 540 (1981))), mandate recalled and amended by 957 F.2d 301 (7th Cir. 1992)....

Here, Agent Welch analyzed the stock sales and described the income tax consequences. Although he was not proffered as an expert witness, his qualifications were in evidence. Those qualifications included eighteen years of service with the IRS as a revenue agent, a bachelor's degree in accounting and a master's degree in taxation. While employed by the IRS, he completed additional classes in taxation, specialized training and continuing professional education. At the time of trial, he had conducted approximately two hundred tax audits and had reviewed several thousand audits of other revenue agents. Agent Welch was therefore qualified to express "an opinion as to the proper tax consequences of a transaction" and of the "transaction itself, which necessarily precedes his ... evaluation of the tax consequences." [United States v. Windfelder, 790 F.2d 576, 581 (7th Cir. 1986).]

See United States v. Pree, No. 03-1516 (7th Cir. Sept. 14, 2004) (Coffey, Ripple, & Kanne, JJ.).