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UNITED STATES v. GILKEY

September 5, 1973

United States of America
v.
Edward R. Gilkey


Becker, District Judge.


The opinion of the court was delivered by: BECKER

BECKER, District Judge:

 This case raises the question whether venue for prosecution of a case arising under 26 U.S.C. § 7206(1) lies in the district where the defendant's income tax return was filed, even though the returns were prepared and signed in and mailed from another district. *fn1" At a non-jury trial the government proved that the defendant intentionally omitted certain income from his 1970 and 1971 federal income tax returns, whereupon we found the defendant guilty on two counts of violating that statute. Defendant, asserting that it is uncontroverted that he did not make or subscribe the returns in the Eastern District of Pennsylvania, has moved for a new trial and for arrest of judgment, pressing but one ground in support of his motion: *fn2" that the government did not prove that the offenses charged were committed in the Eastern District of Pennsylvania. *fn3" For the reasons that follow, we deny his motion.

 The facts elicited at trial which are pertinent to the defendant's motion are uncontested, and are essentially as follows. At the time of the filing of the 1970 return the defendant resided in Washington County, in the Western District of Pennsylvania. The return was prepared and signed in that District and mailed from there to the Internal Revenue Service Center in Philadelphia, in the Eastern District of Pennsylvania, the place designated for filing. At the time of the filing of the 1971 return, the defendant resided in Luzerne County, in the Middle District of Pennsylvania, and the return was prepared and signed in that District and mailed from there to the Internal Revenue Service Center in Philadelphia. *fn4"

 The applicable statutory provisions for venue may be recited briefly. Rule 18 of the Federal Rules of Criminal Procedure provides that "Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed. . . ." 18 U.S.C. § 3237 contains two subsections, both relevant to this case:

 
(a) Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.
 
Any offense involving the use of the mails . . . is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such . . . mail matter moves.
 
(b) Notwithstanding subsection (a) . . . where an offense involves use of the mails and is an offense described in section . . . 7206(1) of [ the Internal Revenue Code of 1954 ] (whether or not the offense is also described in another provision of law), and prosecution is begun in a judicial district other than the judicial district in which the defendant resides, he may upon motion filed in the district in which the prosecution is begun, elect to be tried in the district in which he was residing at the time the alleged offense was committed: Provided, That the motion is filed within twenty days after arraignment of the defendant upon indictment or information.

 (emphasis added.) The issue before us, then, is where the defendant committed the offense of making and subscribing the returns.

 There is no appellate authority in this circuit on the point at issue. In United States v. Goldberg, 206 F. Supp. 394, 397-98 (E.D. Pa. 1962), aff'd, 330 F.2d 30, 43 (3d Cir. 1964), cert. denied, 377 U.S. 953, 84 S. Ct. 1630, 12 L. Ed. 2d 497 (1964), Judge Kraft wrote in an income tax evasion case that venue is proper both where the return is prepared and where it is filed. But the latter point was dictum since what was at issue was whether venue lay where the returns were prepared, and it was on that point that he was affirmed. There is also surprisingly little law on the general subject of whether venue lies in the district where a tax return is filed. However, cases involving this issue point to the conclusion that the maker of a false return may be prosecuted either in the district where the return is prepared and signed or in the district where it is filed. Accord, Kowalsky v. United States, 290 F.2d 161, 163 (5th Cir. 1961) (tax evasion case) and cases cited therein; United States v. United States District Court, 209 F.2d 575 (6th Cir. 1954) (over Judge Miller's dissent that venue is proper only where the return is filed); United States v. Hagan, 306 F. Supp. 620 (D. Md. 1969). There have also been cases where defendants argued that venue was proper only where the return was filed; in rejecting that argument (and upholding prosecution where the return was prepared) the courts have agreed that prosecutions could be brought where returns were prepared but need not be brought there. See United States v. Newton, 162 F.2d 795 (4th Cir. 1947), cert. denied, 333 U.S. 848, 92 L. Ed. 1130, 68 S. Ct. 650 (1948); De Rosier v. United States, 218 F.2d 420 (5th Cir. 1955).

 The sole exception to the foregoing line of cases is United States v. Wyman, 125 F. Supp. 276 (D. Mo. 1954). The Wyman opinion, which squarely supports the defendant's position, stated:

 
The preparation of a return is a lawful or unlawful act according to the intent and manner of its preparation. The work of preparation is ended before it can be presented.

 125 F. Supp. at 280. This holding of Wyman was questioned as unprecedented and unexplained in United States v. Horwitz, 247 F. Supp. 412 (N.D. Ill. 1965), and we are inclined to agree with Horwitz that Wyman is not the law. While "make" and "subscribe" are words that connote preparing and signing, we think that a filled-in form 1040 does not become a "return," and a taxpayer does not "make a return," until it is filed with the Internal Revenue Service. To hold otherwise would be not only to defy precedent, but also to offend common sense notions of fairness. For if the offense described in § 7206(1) is completed once the tax form is filled in and signed, then a person can be prosecuted for (1) signing a return he never intends to file, or (2) signing a false return but then changing his mind about breaking the law and sending in a correct return instead, both of which are acts wholly unprejudicial to the functioning of the government. They are totally immaterial in that they have no capacity whatsoever to influence government action. In other words, the taxpayer has the "right of self-correction." *fn5" This view was aptly expressed in United States v. Bithoney, 472 F.2d 16, 23 (2d Cir.), cert. denied, 412 U.S. 938, 93 S. Ct. 2771, 37 L. Ed. 2d 397 (1973), quoting from the district court opinion in United States v. Newton, 68 F. Supp. 952:

 
If the defendant should assist a taxpayer in the preparation of the most dishonest or fraudulent kind of a return, and then immediately have a change of heart, tear up the document, and throw it in the wastebasket, it is ...

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