Commonwealth v. Steven R. Nygren.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-393

COMMONWEALTH

vs.

STEVEN R. NYGREN.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from his conviction in the Superior

Court of an indictment charging him with willful failure to file

a personal income tax return for 2018. See G. L. c. 62C,

§ 73 (c). We affirm.

A conviction under the statute requires proof that the

defendant was (1) "required . . . to pay any estimated tax or

tax, make a return, keep records, or supply any information,"

and (2) "willfully fail[ed] to pay such estimated tax or tax,

make such return, keep such records, or supply such

information," (3) "at the time or times required by law or

regulations." G. L. c. 62C, § 73 (c). Willful conduct requires

proof of the defendant's "voluntary, intentional violation of a
known legal duty." Commonwealth v. Kingston, 46 Mass. App. Ct.

444, 445 (1999), quoting Cheek v. United States, 498 U.S. 192,

201 (1991). On appeal, the defendant challenges the third

element and contends that "the evidence failed to prove that he

did not file his [2018] tax return on time." Viewing the

evidence in a light most favorable to the Commonwealth, we

conclude that the Commonwealth presented sufficient evidence for

the jury to infer the essential elements of the crime charged.

See Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979).

The Commonwealth presented evidence pertaining to the

defendant filing tax returns for the years 2016, 2017, and 2018.

Date stamps on the tax returns for 2016 and 2017 identified the

month, day, and time of filing, but the 2018 return did not

contain any similar date stamp. In the absence of such a stamp

showing the filing date, the defendant claims that the evidence

failed to prove an essential element of the crime. Contrary to

the defendant's contention, the evidence established the time of

filing through other means. A tax fraud investigator for the

Department of Revenue testified that taxes are due on either

April 15 or 16 (depending on a holiday), and an automatic

extension for six months (if requested) could have extended the

deadline to October 15 or October 16, 2019. He further

testified that after reviewing "the records of the Department of

Revenue," the defendant's 2018 tax return was filed on July 27,

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2020. This review of records was not limited, as the defendant

contends, to the defendant's tax returns for 2016, 2017, and

2018. Thus, the evidence permitted jurors to conclude that the

defendant did not comply with the "time or times required by law

or regulations" for the filing of the 2018 tax return. G. L.

c. 62C, § 73 (c).

We also discern no error by counsel that "deprived the

defendant of an otherwise available, substantial ground of

defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

The defendant faults counsel for failing to move to strike the

tax investigator's testimony about the filing date. As

previously discussed, that testimony was relevant to prove the

untimely filing of the 2018 return. Because a motion to strike

on relevance grounds would have been futile, counsel did not

err. See Commonwealth v. Gambora, 457 Mass. 715, 731 n.24

(2010). We also discern no error from counsel stating in his

closing argument that the defendant filed the 2018 return late.

Defense counsel invited jurors to consider the "not [so]

flattering fact" that the defendant was incarcerated when taxes

were due on April 16, 2019, and that he "file[d] a tax return,

belatedly, in July of 2020." These circumstances, according to

counsel, showed an absence of willfulness. Counsel's evident

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strategy, though unsuccessful, was not "manifestly

unreasonable." Commonwealth v. Kolenovic, 471 Mass. 664, 674

(2015).

Judgment affirmed.

By the Court (Desmond,
Grant & Hodgens, JJ.1),

Clerk

Entered: March 13, 2025.

1 The panelists are listed in order of seniority.

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