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Click here for the full text of this decision FACTS:Defendant-appellant Charles Thomas Clayton appeals from a jury verdict finding him guilty of two counts of making and subscribing a false amended tax return in violation of 26 U.S.C. �7206(1) and six counts of willful failure to file a tax return in violation of 26 U.S.C. �7203. Clayton appeals his conviction on the six counts of willful failure to file a tax return, arguing that the Internal Revenue Code and tax regulations do not contain a valid exemption amount, and as such there is no legal requirement to file a tax return. He also appeals his conviction on the two counts of making and subscribing a false amended tax return. HOLDING:Affirmed. Clayton contends that the statute’s reliance on the Consumer Price Index to calculate the exemption amount strips the exemption amount of legal force, because the CPI is compiled by the Department of Labor and has not been promulgated pursuant to the Administrative Procedure Act. Clayton’s obligation to file a federal income tax return is derived from �6012. Section 6012, being a congressionally enacted federal statute, is not the rule of an agency as the term is defined by the APA. The fact that �6012 incorporates by reference the CPI, which is compiled and published by an agency of the DOL, does not cause the APA to be invoked. In this context, the CPI is simply an ascertainable numerical standard, and there is no requirement that such a standard incorporated into a statute be itself an enforceable rule of law. A statute providing the basis for criminal prosecution may incorporate other provisions by reference. A statute is not unconstitutionally vague merely because it incorporates other provisions by reference; a reasonable person of ordinary intelligence would consult the incorporated provisions. Clayton argues that the district court abused its discretion in denying the jury instructions he requested on his theory of defense to the two counts of filing a false income tax return. Clayton asserted that he filed Form 1040X returns to initiate a process whereby, if his claims for a refund were denied, he could present in a later district court proceeding his �861 argument that income derived from sources within the United States is nontaxable income. Clayton’s argument lacks merit, because his proposed jury instructions are misleading. Clayton asserts that a Form 1040X cannot give rise to liability for filing a false tax return, because it is simply a form used to claim a refund. Because Form 1040X is used to report all changes or corrections to a filed return, even when the form is used to claim a refund, it is still a return that amends an originally filed return. As such, Form 1040X can give rise to liability for filing a false tax return. The 5th Circuit rejected, in a 2003 unpublished opinion, as “patently frivolous” and “absurd” the argument that income derived from sources within the United States is nontaxable income under �861. As such, Clayton should not avoid liability for filing a false tax return simply because he used the procedural device of Form 1040X to challenge his tax liability under the �861 argument. Because Clayton’s proposed instructions would not clearly instruct jurors about the effect of filing a false Form 1040X, the district court did not abuse its discretion in denying them. OPINION:Per curiam; King, Garza and Benavides, J.J.

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