Haskell v. United States

• Decision Date: 05 March 1957
• Docket Number: No. 5428.,5428.
• Citation: 241 F.2d 790
• Parties: Charles A. HASKELL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

241 F.2d 790 (1957)

Charles A. HASKELL, Appellant, v. UNITED STATES of America, Appellee.

No. 5428.

United States Court of Appeals Tenth Circuit.

February 18, 1957.

Rehearing Denied March 5, 1957.

Anthony F. Zarlengo, Denver, Colo. (Fred M. Winner, Denver, Colo., was with him on the brief), for appellant.

John S. Pfeiffer, Asst. U. S. Atty., Denver, Colo. (Donald E. Kelley, U. S. Atty., Denver, Colo., was with him on the brief), for appellee.

Before BRATTON, Chief Judge, and HUXMAN and PICKETT, Circuit Judges.

BRATTON, Chief Judge.

The indictment in this case — drawn under 26 U.S.C.A. § 145(a) — charged that during the calendar year 1951, Charles A. Haskell, a resident of Colorado, received gross income in the amount of $43,518.75; that by reason thereof he was required by law, after the close of the calendar year 1951 and on or before September 15, 1952, to make an income tax return; and that well knowing all of such facts, he wilfully and knowingly failed to make such return. A jury found the defendant guilty, and the court sentenced him to imprisonment for a period of six months and to pay a fine of $5,000. From such judgment and sentence this appeal was seasonably perfected.

It is urged that the court erred in denying the motion to dismiss the indictment for failure to charge that wilful failure to make the income tax return existed at the time the making of such return was required. While presented on a broad basis, the focal point of the argument in support of the contention is that wilful failure to make the return at the time the making thereof was required was an essential element of the offense laid in the indictment; that the indictment failed to charge wilfulness at such time; and that the omission of such element from the charging part of the indictment was fatal. The indictment charged that appellant was required to make a return on or before September 15, 1952; and it further charged that he wilfully and knowingly failed to make it. Considered as a whole, the indictment charged in language too clear for doubt that wilful failure to make the return existed at the time the making thereof was required.

The further ground of challenge to the action of the court in denying the motion to dismiss the indictment is that under Section 145(a), supra, the wilful failure to make a declaration of estimated tax and the wilful failure to make a return constitute an offense; that the failure to make only one of the two does not constitute an offense; and that since the indictment charged only the wilful failure to make a return, it was fatally defective. Punctuation in the statute and legislative history in connection with the statute are relied upon to sustain the contention. Punctuation is one factor to be accorded appropriate consideration in the interpretation of an obscure or doubtful statute, but it is not always controlling; and if necessary in order to arrive at the legislative intent, a court will disregard punctuation. Hammock v. Loan & Trust Co., 105 U.S. 77, 26 L.Ed. 1111; United States v. Lacher, 134 U.S. 624, 10 S.Ct. 625, 33 L.Ed. 1080; Ford v. Delta & Pine Land Co., 164 U.S. 662, 17 S.Ct. 230, 41 L.Ed. 590; Stephens v. Cherokee Nation, 174 U.S. 445, 19 S.Ct. 722, 43 L.Ed. 1041; Barrett v. Van Pelt, 268 U.S. 85, 45 S.Ct. 437, 69 L.Ed. 857; United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 53 S.Ct. 42, 77 L.Ed. 175; Costanzo v. Tillinghast, 287 U.S. 341, 53 S.Ct. 152, 77 L.Ed. 350; Chicago, M. & St. P. R. Co. v. Voelker, 8 Cir., 129 F. 522, 70 L.R.A. 264; Egyptian Supply Co. v. Boyd, 6 Cir., 117 F.2d 608. And where doubt exists respecting the meaning of a statute, the legislative history may be taken into consideration in resolving the doubt. But that is only one rule and it may be invoked only in case of ambiguity or uncertainty in respect to the language used. Where the language used is clear, there is no need to refer to legislative history. Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L. Ed. 1207; Nicholas v. Denver & Rio Grande Western Railroad Co., 10 Cir., 195 F.2d 428. There is no doubt, uncertainty, or obscurity respecting section 145(a). Other provisions in revenue legislation place upon certain persons two separate and distinct duties. One is to make a declaration of estimated tax and the other is to make a return. The two duties co-exist and they are not alternatives or substitutes for each other. A taxpayer is not free to discharge one of such duties and ignore the other. And under the plain terms of section 145(a), the wilful failure to make a return within the time required by applicable law or regulations constitutes an offense. Therefore no occasion arises to explore the field of punctuation or legislative history in connection with the statute.

An additional point of challenge to the judgment is that the motion to dismiss the indictment should have been sustained on the ground that prosecution for the alleged offense was barred by limitation. Section 53(a) (1) of the Internal Revenue Code of 1939 provides that returns made on the basis of the calendar year shall be made on or before March 15th following the close of the calendar year; and section 53(a) (2) provides that the Commissioner of Internal Revenue may grant a reasonable extension of time not to exceed six months for filing returns, under such rules and regulations as he may prescribe with the approval of the Secretary of the Treasury. 26 U.S.C.A. 1952 ed. § 53(a) (1), (2). Section 3791(a) (1) empowers the Commissioner, with the approval of the Secretary, to prescribe and publish all needful rules and regulations for the enforcement of the Code. 26 U.S.C.A. 1952 ed. § 3791. Treasury Regulations, section 39.53-2, promulgated under section 3791(a) (1) of the Code, provides among other things that authority for granting extensions of time for filing income tax returns is thereby delegated to the various district directors of internal revenue. And section 39.53-4 provides that the due date is the date on or before which a return is required to be filed in accordance with the provisions of the Code and the regulations prescribed thereunder or the last day of the period covered by an extension of time granted by the Commissioner or a district director of internal revenue. Appellant seasonably made three successive requests for extension of time within which to make his return for the year 1951. The last request was for an extension to September 15, 1952. All of such requests were granted by the director of internal revenue for the district of Colorado. Regulations promulgated for the enforcement of revenue legislation must be sustained unless unreasonable and plainly inconsistent with controlling statutes. Fawcus Machine Co. v. United States, 282 U.S. 375, 51 S.Ct. 144, 75 L.Ed. 397; Commissioner of Internal Revenue v. South Texas Lumber Co., 333 U.S. 496, 68 S.Ct. 695, 92 L.Ed. 831. The regulation delegating to the various district directors of internal revenue power to grant extensions of time for the filing of returns is reasonably adapted to the effective administration of revenue legislation. It is not inconsistent with any controlling statute. And it is effective. The three extensions granted by the director of internal revenue, considered as a whole, effectively extended to September 15, 1952, the time for the filing of the return for the year 1951. That became the due date on which the return was required to be filed. There was no default in the filing of the return prior to that time.

Section 3748(a) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 3748 (a), provides in effect that no person shall be prosecuted for an offense arising under the internal revenue laws unless the indictment is returned or the information filed within three years next after the commission of the offense. The indictment was returned on September 14, 1955, one day less than three years after the due date for the making of the return for the year 1951, and therefore prosecution for the alleged offense was not barred by the statute of limitation. Bowles v. United States, 4 Cir., 73 F.2d 772, certiorari denied 294 U.S. 710, 55 S.Ct. 506, 79 L.Ed. 1245.

The sufficiency of the evidence...