Clay v. United States, 15060.

• Decision Date: 12 January 1955
• Docket Number: No. 15060.,15060.
• Citation: 218 F.2d 483
• Parties: Will Parks CLAY, Walter Jolly, Andrew B. Turk and Andrew Morris, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

218 F.2d 483 (1955)

Will Parks CLAY, Walter Jolly, Andrew B. Turk and Andrew Morris, Appellants, v. UNITED STATES of America, Appellee.

No. 15060.

United States Court of Appeals, Fifth Circuit.

January 12, 1955.

T. Reese Watkins, Paul M. Conaway, T. A. Jacobs, Jr., Macon, Ga., for appellant.

Joseph H. Davis, Asst. U. S. Atty., Frank O. Evans, U. S. Atty., Floyd M. Buford, Asst. U. S. Atty., Macon, Ga., for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and RUSSELL, Circuit Judges.

PER CURIAM.

The appellants were convicted of willfully attempting to evade the wagering occupational tax imposed by § 3290 of the Internal Revenue Code¹ on persons engaged in the business of accepting wagers, in violation of § 2707(c) of the Code, as made applicable by § 3294(c) thereof. It was stipulated that the tax was not paid, and, although appellants contend otherwise, the evidence² was sufficient to warrant a finding by the jury that appellants were liable for the payment of the tax and willfully failed to pay it. As grounds for reversal of this conviction, appellants contend: (1) that the indictment should have been dismissed because (a) it did not sufficiently charge the felonious offense of attempted evasion and (b) the venue of the offense sought to be charged was in the Northern District of Georgia, where the tax was supposed to have been paid; (2) the court erred in overruling their motion for a bill of particulars; (3) the evidence did not authorize a conviction, and (4) the court erred in instructing the jury that if it found appellants were liable for the tax and willfully failed to pay it, verdicts of guilty would be authorized.

Reference to the applicable statutes disclose that any person who is engaged in the business of accepting wagers is liable for payment of the special occupational tax. The failure of such person to pay the tax gives rise to the penal provisions of the law, the severity of which is dependent upon the nature of the offense committed. Thus, the mere failure to pay the tax is punishable by a fine of not more than $5,000;³ the willful failure to pay is punishable as a misdemeanor,⁴ and the willful attempt to "in any manner" evade payment of the tax is punishable as a felony.⁵

The record evidences an attempt by appellee to test its theory that it can "make out a felony violation * * * in a `failure to pay' situation." The government concedes, as it must, that allegation and proof of liability for the occupational tax, coupled with a failure to pay it, is not sufficient to constitute a felony violation, but, in addition, there must be some affirmative act on the part of the defendant showing an attempt to evade the imposition of the tax. Relying upon Spies v. United States, 317 U. S. 492, 63 S.Ct. 364, 368, 87 L.Ed. 418, it urges that any conduct on the part of the defendant, the likely effect of which would be to mislead or conceal, is sufficient to convert what would otherwise be a misdemeanor into a felony violation. In the Spies case, the question was whether proof that a taxpayer willfully failed to file an income tax return and to pay the tax in violation of § 145(a) of the Internal Revenue Code, was sufficient to sustain a conviction of attempting to evade income tax in violation of § 145(b) of the Code.⁶ The court held that the felony statute, § 145(b), was not violated by willful omissions to make a return and to pay the tax. This holding was based upon consideration of the statutory scheme as a whole, which led to the conclusion that "willful but passive neglect of the statutory duty may constitute the lesser offense, but to combine with it a willful and positive attempt to evade tax in any manner or to defeat it by any means lifts the offense to the degree of felony."

Appellee urges that this test is met by the indictment because it alleges both acts of commission and omission, in that it alleges that the business was carried on and that the tax was not paid. Aside from the fact that this contention is entirely inconsistent with the concession alluded to above, acceptance of it would render § 2707(b) meaningless, since every willful failure to pay the tax would constitute a felony, there being no duty to pay the tax unless a wagering business is being conducted. In other words, under the theory espoused by appellee, the same allegations and proof necessary to sustain a misdemeanor conviction would sustain a felony conviction if the pleader alleged an attempt to evade rather than a failure to pay. This contention will not do. The teaching of the Spies case is that in order to sustain a conviction under the felony statute something more than a violation of the misdemeanor statute must be shown, some conduct, "the likely effect of which would be to mislead or conceal."

All that is alleged in the indictment is that appellants were engaged in the business of accepting wagers without having paid the occupational...