v. United States

• Decision Date: 06 December 1954
• Docket Number: No. 18,18
• Parties: Friedberg v. UNITED STATES of America
• Court: U.S. Supreme Court

348 U.S. 142

75 S.Ct. 138

99 L.Ed. 188

Friedberg

v UNITED STATES of America.

No. 18.

Argued Oct. 20, 1954.

Decided Dec. 6, 1954.

Rehearing Denied Jan. 31, 1955.

See 348 U.S. 932, 75 S.Ct. 334.

Mr.Robert N. Gorman, Cincinnati, Ohio, for petitioner.

Mr. H. BrianHolland, Asst. Atty. Gen., for respondent.

Mr. Justice CLARK delivered the opinion of the Court.

This is the second in the group of four cases involving income tax prosecutions under the net worth method of proof. In this case petitioner was indicted for the years 1944 through 1947, and convicted on all counts except the first, covering the year 1944.

While the discussion in Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, is dispositive of some of the more general problems raised by this type of prosecution, petitioner here directs his fire specifically at the sufficiency of the evidence as to his opening net worth. To highlight his contention that the Government had not properly accounted for an alleged hoard of cash and bonds on hand at the beginning of the indictment period, petitioner has stipulated virtually every other net worth issue out of the case.

Although petitioner's testimony as to this cash on hand vacillated,¹ we conclude from a careful examination of the testimony that the largest amount claimed at the starting point was 'far in excess' of $60,000. The Government's evidence, as in Holland, did not directly dispute this, but it did painstakingly trace the Friedbergs' finances from 1922 through the prosecution years. It pointed unmistakably to the conclusion that petitioner had no such board of cash at the starting point.

This evidence, briefly outlined, was as follows: Petitioner filed no tax return for 1922, paid nominal taxes for 1923, 1924 and 1925, and, except for 1926, 1927, 1930 and 1937, when he filed nontaxable returns, he filed no returns from 1926 through 1937. He borrowed small sums of money on three occasions in 1931. In 1934, when he failed to pay $30 a month on a real estate mortgage, the mortgagee brought a foreclosure suit and petitioner was unable to meet the modest compromise terms offered him by the court. In 1936 and 1940, levies on a judgment for $13.76 were returned nulla bona. A mortgage on his former home was foreclosed in 1937, and a deficiency judgment entered for over $3,500. The writ of execution was returned 'nothing found' in 1939, and petitioner then settled the judgment by paying $100 to the mortgagee in return for release from liability. In 1939, petitioner stated in an application for a loan that his total assets were $9,200, including $150 cash on hand, while his liabilities were $500. The tailoring business in which petitioner had worked since 1922 for an average pay of $50 a week was dissolved in 1941 because it could not meet its bills, and petitioner bought its assets for $650.

Yet it was during these years, from the 1920's until 1941, that petitioner claimed to have accumulated 'far in excess' of $60,000. We think the jury could readily have concluded that petitioner had saved no such reserve.

Petitioner's other objections can be disposed of quickly. First, he contends it was error for the special agent, a witness for the Government, to give his 'personal opinion' that petitioner had no cash on hand at the starting point. But this distorts what actually happened. The agent was asked on cross-examination to give a 'yes or no' answer to whether in his net worth statement he had credited petitioner with any cash on hand for 1941. The agent said 'there was no evidence available to show there was cash.' After defense counsel's insistence that the witness answer 'did you or didn't you' give credit for any cash, the court allowed the agent to explain...