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UNITED STATES v. PALERMO

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA


May 31, 1957

UNITED STATES of America
v.
Frank PALERMO, also known as Frank 'Blinkey' Palermo

The opinion of the court was delivered by: DUSEN

This case comes before the court on defendant's motion to dismiss the information charging defendant with 'wilfully and knowingly' failing to pay his 1953 federal income tax when due, in violation of 26 U.S.C.A. § 145(a) -- 1939 I.R.C. -- and with 'wilfully and knowingly' failing to pay his 1954 federal income tax when due, in violation of 26 U.S.C.A. § 7203 -- 1954 I.R.C.

The defendant alleges these reasons as grounds for his motion:

 I. 'The Information Does Not State Facts Sufficient to Constitute an Offense against the United States.'

 The defendant filed 1953 and 1954 federal income tax returns on time but failed to pay any tax at the time of filing, as required by law. Since the information against defendant, filed March 7, 1957, is for violation of misdemeanors in Section 145(a) of the 1939 Internal Revenue Code, 26 U.S.C.A. § 145(a), and in Section 7203 of the 1954 Internal Revenue Code, 26 U.S.C.A. § 7203, the alleged offense of 'that well knowing all of the * * * facts he did wilfully and knowingly fail to pay said income tax or any part thereof * * * at the time required' sufficiently embodies the elements of the crime *fn1" and sufficiently informs the defendant of the charge so as to enable him to prepare his defenses. *fn2"

  II. 'The Information Is a Discriminatory Action against the Defendant in Violation of His Constitutional Rights.'

 In his memorandum of law filed 5/9/57, defendant argues that information in the possession of the Government will show that 'there has been no criminal prosecution * * * against taxpayers who have not paid the income taxes due at the time requires.' Although neither the motion nor the brief allege any more than the foregoing, defendant apparently alleges that these taxpayers filed their returns but did not pay the tax, which is the course followed by defendant. In order to give the defendant an opportunity to amplify this point and to present evidence in support of it, the hearing judge held a hearing on May 28, 1957. *fn3" At this hearing, counsel stipulated to these facts: *fn4"

 A. In the First Pennsylvania District, there have been no other criminal prosecutions against taxpayers who have filed their federal income tax returns on time but have failed to pay the tax shown to be due on the return at the time the tax was due (N.T. 3-4).

 B. There are only two pending cases where informations *fn5" have been returned against taxpayers who have filed their federal income tax returns on time but have failed to pay the tax shown to be due on the return at the time the tax was due (N.T. 5-6, 11). *fn6"

 Defendant relies on cases holding that the due process clause of the Fifth Amendment prohibits unjustifiable discriminatory enforcement of the law, even though this Amendment does not contain 'equal protection' wording. See Bolling v. Sharpe, 1954, 347 U.S. 497, 499, 74 S. Ct. 693, 694, 98 L. Ed. 884, *fn7" where the court said 'discrimination may be so unjustifiable as to be violative of due process'; Truax v. Corrigan, 1921, 257 U.S. 312, 332, 42 S. Ct. 124, 129, 66 L. Ed. 254, where the court indicated that 'due process' covers 'the general fundamental principle of equality of application of the law.' However, the clearly recognized principle, that failure to prosecute all criminals is no defense to the one prosecuted, *fn8" makes the above cited cases, relied on by defendant, inapplicable in this situation, particularly in the absence of any showing in this record that defendant is similarly situated to any of those taxpayers described under A above who have not been criminally prosecuted. It seems too clear for argument that a taxpayer who wilfully fails to pay his tax when due, having ample assets to use for the purpose, may most properly be treated differently under these criminal provisions from the many taxpayers whose economic conditions make it far more difficult for them to pay their taxes when due. *fn9" This record even indicates that this taxpayer has assets which might have been used to pay this tax when due. *fn10"

 III. 'The Information Is an Attempt to Imprison the Defendant for Taxes That Have Been Paid in Full Including Interest and Penalties.'

 Finally, it has been repeatedly held that neither the Thirteenth Amendment nor any other other Constitutional or statutory provision prevents imprisonment for non-payment of taxes. *fn11"

  Order

 And now, May 31, 1957, defendant's motion to dismiss, filed March 7, 1957, is denied.


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