Utah Rep. Phil Lyman implied at a hearing Friday that he’ll cough up the full $96,000 restitution payment in his Recapture Canyon case rather than give federal prosecutors his tax returns.
A federal judge ordered Lyman to hand over tax records from 2017 to 2019 by May 1, but the lawmaker ignored that deadline and subsequent emails from U.S. Assistant Attorney Allison J.P. Moon.
On Sept. 1, Lyman apparently sent portions of his 2017 and 2018 returns to Moon’s office, but included a brief letter stating that the U.S. attorneys were not allowed to look at them and that they were instead addressed to Judge David Nuffer.
Lyman did not, however, send the documents directly to Nuffer’s court.
“Is there a reason you know of that the U.S. Attorney’s Office shouldn’t be able to review those tax returns?” Nuffer asked Lyman’s attorney, Daniel McCay, at Friday’s hearing. McCay is also the state senator from Riverton representing District 11.
“I haven’t had a chance to review the issue,” McCay said, adding that Lyman would like to keep the information private. “The question really became whether the U.S. attorney’s office needed to see that information" or whether Nuffer could review the documents.
“We don’t deal one-sided justice in the United States,” Nuffer responded. “How could that possibly be appropriate?”
Nuffer also noted that the recently provided tax returns didn’t include 2019, as ordered, and that the documents for 2017 and 2018 appeared incomplete.
“I don’t understand the absence of 2019 material. ... I just don’t know enough,” Nuffer said.
“That makes two of us,” McCay replied.
Federal prosecutors want to review Lyman’s returns to determine whether his $100 monthly restitution payments should be higher. Lyman is a certified public accountant. In addition to the stipend he receives for his service as a part-time Utah lawmaker, Lyman owns an accounting firm, an investment group and a financial advisory group. He receives compensation from wages, rental income, business services client income and S-corp distributions according to his disclosure form.
At his current rate, nearly three-quarters of the $95,955.61 in damages would still be owed by the time the judgment expires in 2036.
What’s more, Lyman’s low $100 monthly payments seem to have come from a fluke. When the court issued its initial 2015 judgment against Lyman, finding him guilty of a misdemeanor for leading an ATV protest down the closed Recapture Canyon, it found his co-defendant, Monte Jerome Wells, couldn’t afford to pay $500 each month as originally ordered. So the judge lowered payments for both Wells and Lyman to $100.
Lyman has consistently made those payments, despite calling the restitution “extortion” and his past charges “a farce.”
But back in November 2017, Lyman came across as more contrite. He emailed Moon to say “I would very much like to pay [the restitution] off and put it behind me.”
“I have contacted a realtor and told him that I would like to list all of my property,” he added. “... I am hopeful that they will generate enough money to pay the [government].”
That apparently never happened. In 2018, federal prosecutors tried to get the court to order Lyman to make bigger payments, arguing that his financial circumstances had changed after he was elected to the Utah House.
Nuffer, the judge in the case, didn’t grant that request. Instead he required Lyman to hand over his tax returns so the government could better understand his finances and ability to pay.
When Lyman ignored that order, Moon and U.S. Attorney John Huber asked Nuffer to compel him to appear in court and explain why he shouldn’t be held in contempt.
Rather than make a legal case for holding onto his returns, Lyman filed a response on Wednesday that was mostly a diatribe against the federal court system, U.S. attorneys and environmentalists. Nuffer responded by ordering an in-person hearing on Oct. 2 and threatening Lyman with arrest.
Lyman is a huge supporter of President Donald Trump, who also has refused to provide his tax returns to prosecutors investigating his business practices. A judge on Thursday rejected Trump’s arguments that a grand jury subpoena for the tax records was overbroad.
At Friday’s virtual hearing in Utah’s federal court, Nuffer noted that he has only had one in-person hearing since the coronavirus pandemic began.
“I’m not anxious to do anything that endangers anyone, but I’m anxious to move this case along,” Nuffer said.
McCay, Lyman’s attorney, asked if that Oct. 2 hearing could be postponed, as well as the review of tax documents, if Lyman paid his full $96,000 restitution payment in 30 days.
“My only hesitation is that Mr. Lyman has said before, several years ago now, that he would like to pay in full and he did not follow through on it,” Moon responded. “I guess I feel a little doubtful it will happen this time. At the same time, I don’t think a 30 day [extension] would do much harm.”
The judge called on Lyman to pay the full restitution by noon on Oct. 16. Otherwise he will be required to file an explanation of why federal prosecutors can’t review his tax records and why they weren’t sent in full to the court. Lyman could also be ordered to appear in person by the end of next month.
“I assume we’re going to have all this straightened out by payment,” Nuffer said. “I appreciate the moving forward I sense.”
Editor’s note, 3:51 p.m., Sept. 18: This story has been updated to confirm that Lyman’s attorney, Daniel McCay, is also a Utah senator.