Clay v. United States, No. 15060.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPER CURIAM
Citation218 F.2d 483
PartiesWill Parks CLAY, Walter Jolly, Andrew B. Turk and Andrew Morris, Appellants, v. UNITED STATES of America, Appellee.
Decision Date12 January 1955
Docket NumberNo. 15060.

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.


218 F.2d 484

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

218 F.2d 485
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...

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12 practice notes
  • United States v. Meyer, No. 17371.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 20 July 1959
    ...Indictments and Informations, § 187. The mere legal conclusions at the end of the counts (See Clay v. United States, 5 Cir., 1955, 218 F.2d 483, 486), and the matters alleged only indirectly or impliedly in the clauses which begin "without disclosing that" (United States v. Willia......
  • Lott v. United States, No. 17888.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 7 January 1963
    ...and from aught appearing the transfer was made in the usual and regular conduct of the business; and Clay v. U. S., 5 Cir., 1955, 218 F.2d 483, in which it was held that an allegation of liability for tax coupled with a failure to pay was insufficient to constitute a felony violation, becau......
  • Reynolds v. United States, No. 15284.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 29 September 1955
    ...but when the Government in its brief called attention to the recent decision of this Court in Clay v. United States, No. 15,060, 5 Cir., 218 F.2d 483, a supplemental brief on appellant's behalf was filed vigorously urging this point. The opinion in the Clay case, supra, does not show the ex......
  • Clay v. United States, No. 15996.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 11 December 1956
    ...denied 347 U.S. 933, 74 S.Ct. 626, 98 L.Ed. 1084; Contreras v. United States, 5 Cir., 213 F.2d 96; Clay v. United States, 5 Cir., 218 F.2d 483; Reynolds v. United States, 5 Cir., 225 F.2d 123, certiorari denied 350 U.S. 914, 76 S.Ct. 197, 100 L.Ed. 801, it was one involving merely the failu......
  • Request a trial to view additional results
12 cases
  • United States v. Meyer, No. 17371.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 20 July 1959
    ...Indictments and Informations, § 187. The mere legal conclusions at the end of the counts (See Clay v. United States, 5 Cir., 1955, 218 F.2d 483, 486), and the matters alleged only indirectly or impliedly in the clauses which begin "without disclosing that" (United States v. Willia......
  • Lott v. United States, No. 17888.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 7 January 1963
    ...and from aught appearing the transfer was made in the usual and regular conduct of the business; and Clay v. U. S., 5 Cir., 1955, 218 F.2d 483, in which it was held that an allegation of liability for tax coupled with a failure to pay was insufficient to constitute a felony violation, becau......
  • Reynolds v. United States, No. 15284.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 29 September 1955
    ...but when the Government in its brief called attention to the recent decision of this Court in Clay v. United States, No. 15,060, 5 Cir., 218 F.2d 483, a supplemental brief on appellant's behalf was filed vigorously urging this point. The opinion in the Clay case, supra, does not show the ex......
  • Clay v. United States, No. 15996.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 11 December 1956
    ...denied 347 U.S. 933, 74 S.Ct. 626, 98 L.Ed. 1084; Contreras v. United States, 5 Cir., 213 F.2d 96; Clay v. United States, 5 Cir., 218 F.2d 483; Reynolds v. United States, 5 Cir., 225 F.2d 123, certiorari denied 350 U.S. 914, 76 S.Ct. 197, 100 L.Ed. 801, it was one involving merely the failu......
  • Request a trial to view additional results

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