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United States v. Zudick

October 2, 1975



Aldisert, Gibbons and Weis, Circuit Judges.

Author: Aldisert


ALDISERT, Circuit Judge.

United States v. Habig, 390 U.S. 222, 19 L. Ed. 2d 1055, 88 S. Ct. 926 (1968), held that the statute of limitations for criminal violations of the Internal Revenue Code runs from the actual date of filing, and not from the due date, when a return is filed after the due date pursuant to an extension. The question presented in this appeal is whether the limitations period runs from the filing date or the due date when a return is filed before the due date. The district court ruled that the period began to run from the due date, rejected a motion to dismiss the indictment as time-barred, permitted appellant to plead guilty while preserving the right to appeal the adverse decision on the motion to dismiss, and entered a judgment of conviction. We affirm.

The grand jury indicted appellant and his wife*fn1 for having subscribed and filed a return for the calendar year 1965 in which they stated they had had no taxable income when they "knew and believed, their taxable income . . . was $99,956.47," thereby violating 26 U.S.C. § 7206(1).*fn2 The indictment was returned on April 14, 1972; appellant and his wife had filed their return on or about April 1, 1966, although it was not due until April 15. Because the Internal Revenue Code provides a six-year statute of limitations for violations of section 7206(1), 26 U.S.C. § 6531(5), the prosecution would be untimely if the limitations period runs from April 1, but timely if the period runs from April 15.

Appellant's argument follows two tracks. First, he contends that no federal tax prosecution may be instituted more than six years after the act constituting the crime - in this case the filing of the subscribed, false return on or about April 1, 1966. Second, he argues that, even if the limitations period is properly measured from the due date in prosecutions for tax evasion, such a measurement should not apply to the instant case involving not tax evasion, but false declarations under penalties of perjury. Here, appellant stresses that a section 7206(1) charge may lie for the making or subscribing of false "statements" or "other documents", under penalty of perjury, for which there are no due dates.

We must reject appellant's first argument for three reasons: (1) the clear language of the Code; (2) the equally clear instruction of the Supreme Court in United States v. Habig, supra ; and (3) the strong public policy upon which the Code's limitations rules rest and which the Supreme Court sanctioned in Habig.

"If the language be clear it is conclusive. There can be no construction if there is nothing to construe." United States v. Hartwell, 73 U.S. (6 Wall.) 385, 396, 18 L. Ed. 830 (1868). The language of sections 6531 and 6513(a) is clear. As the government successfully argued below: (1) the last sentence of section 6531 provides that "for the purpose of determining the periods of limitation on criminal prosecutions, the rules of section 6513 shall be applicable"; and (2) section 6513(a) provides that "any return filed before the last day prescribed for the filing thereof shall be considered as filed on such last day."*fn3 In other words, for criminal statute of limitations purposes, a return filed before the due date is deemed filed on the due date.

Appellant is of course correct in noting that Habig is factually distinct from the instant case. There, the prosecution was under section 7201, for evading income taxes by filing a false return, and under section 7206(2), for aiding in the preparation and presentation of a false return. Defendants had filed the return after the due date, during an extension period. They asserted the applicability of the last sentence of section 6513(a): "the last day prescribed for filing the return or paying the tax shall be determined without regard to any extension of time granted the taxpayer . . . ." Pursuant to this sentence, they claimed, the statute of limitations ran from the original due date without regard to the extension; because the grand jury did not return the indictment until more than six years after the due date, the prosecution was time-barred. The Supreme Court unanimously rejected this argument on the grounds that neither the language nor the legislative history of section 6513(a) indicated its applicability to returns filed during an extension period. Notwithstanding these distinctions, Habig has significance for the instant appeal, for it discusses specifically the filing of an early return:

Section 6513(a), as its title clearly indicates, was designed to apply when a return is filed or a tax is paid before the statutory deadline. The first two sentences provide that the limitations periods on claims for refunds and tax suits (26 U.S.C. §§ 6511, 6512), when the return has been filed or payment made in advance of the date "prescribed" therefor, shall not begin to run on the early date, but on the "prescribed" date. The third sentence states that, for "purposes of [the] subsection," the date "prescribed" for filing or payment shall be determined on the basis fixed by statute or regulations, without regard to any extension of time. The net effect of the language is to prolong the limitations period when, and only when, a return is filed or tax paid in advance of the statutory deadline.

There is no reason to believe that § 6531, by reference to the "rules of section 6513" expands the effect and operation of the latter beyond its own terms so as to make it applicable to situations other than those involving early filing or advance payment. The reference to § 6513 in § 6531 extends the period within which criminal prosecution may be begun only when the limitations period would also be extended for the refunds and tax suits expressly dealt with in § 6513 - only when there has been early filing or advance payment. In other words, if a taxpayer anticipates the April 15 filing date by filing his return on January 15, the six-year limitations period for prosecutions under § 6531 commences to run on April 15.

United States v. Habig, supra, 390 U.S. at 225 (emphasis added).

Assailing the Habig opinion, especially the italicized portion, as "pure dictum", "a monument to tendentious reasoning", and "interpretive gymnastics", appellant urges that we reject it. Epithetical argumentation need not detain us. The statutory language and the legislative scheme are clear. Even were we to agree that the quoted passage was non-binding "dictum", in the absence of a sound rule of statutory ...

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