Before MARIS, GOODRICH and O'CONNELL, Circuit Judges.
Defendant in this appeal disputes the correctness of his conviction for wilfully and knowingly attempting to defeat and evade the payment of income taxes for the years 1942 to 1945 inclusive. A jury was waived and trial was had to the court. He found the defendant guilty on all four counts, each count involving one of the years in question.
The appeal presents but a single legal point. That point, however, is an important one. Defendant earnestly contends that proof of what he did does not sustain a conviction under Section 145(b) of the Internal Revenue Code.*fn1 Violation of this subsection is a felony. At most he says the facts show possible liability under some other subsection of Section 145. But this conviction cannot be sustained for violation of some other such section because the defendant was specifically charged under Section 145(b).
What the defendant did and did not do can be briefly stated. There is no dispute that defendant is in a legitimate business and there is no charge that his books presented any substantial inaccuracies. But his income tax return for the years in question grossly failed to include all the income received and also charged up certain sums as expenses which were not incurred. The trial court found that the defendant was guilty of a deliberate attempt to defeat or evade the tax and the defendant does not contend that there is not evidence which justifies such a finding.
The defendant's principal reliance for his argument that what he did is insufficient to support conviction of a felony under Section 145(b) is the decision in Spies v. United States, 1943, 317 U.S. 492, 63 S. Ct. 364, 87 L. Ed. 418. In that case the Supreme Court held that the taxpayer's failure to file a return he was lawfully required to file did not subject him to conviction under Section 145(b). Now, the taxpayer says, if one subject to the tax is not guilty of a felony as described in Section 145(b) by failing to file a return at all, a fortiori he cannot be guilty of the felony by filing a false return.
We do not think this argument is correct. A man who files no return has made no misrepresentation. He has simply failed to do what the statute requires him to do.But the man who files a wilfully false return has endeavored to mislead his government. He creates the appearance of having complied with the law, whereas his neighbor who has filed no return does no such thing. Not only has he created the appearance of complying, but that apparent compliance stands a good chance of remaining unattacked, for the tax authorities cannot possibly audit every taxpayer's return every year. There is substance, we think, in distinguishing between failing to file a return and knowingly filing a false one. There is also good common law analogy for such a distinction both in the tort rules regarding liability for deceit and in criminal law rules regarding liability for obtaining money under false pretenses. The law has always distinguished between failing to disclose useful information and making a disclosure which is a lie.*fn2
The Court in the Spies case uses language which we think creates a strong inference that the distinction made here is correct. Speaking of the language used by Congress the Court says: "It may well mean something more as applied to non-payment of a tax than when applied to failure to make a return." 317 U.S. at page 497, 63 S. Ct. at page 367, 87 L. Ed. 418. Again, it is said "we would not without the clearest manifestation of Congressional intent assume that mere knowing and intentional default in payment of a tax where there had been no willful failure to disclose the liability is intended to constitute a criminal offense of any degree." 317 U.S. at page 498, 63 S. Ct. at page 367, 87 L. Ed. 418. (Italics added.) Again, "The difference between the two offenses, [145(a) and 145(b)] * * * is found in the affirmative action implied from the term 'attempt,' as used in the felony subsection." Ibid. In that subsection the Court thought that "Congress intended some willful commission in addition to the willful omissions that make up the list of misdemeanors." 317 U.S. at page 499, 63 S. Ct. at page 368, 87 L. Ed. 418.
The Eighth Circuit has passed twice upon this question. The proposition decided in the first case*fn3 was restated in the latest case*fn4 in language hardly to be improved upon for concise clarity.Here it is said: "The crime denounced by § 145(b) * * * is complete when the taxpayer willfully and knowingly files a false and fraudulent return with intent to defeat or evade any part of the tax due the United States."*fn5
The view thus expressed is the correct one. It fits in, we think, with the point of view taken by the Supreme Court in the Spies case and it gives that effect to the congressional language which we think was meant by the use of the phrase "in any manner" in Section 145(b).
The judgment of the District Court will ...