Imholte v. United States

• Citation: 226 F.2d 585
• Decision Date: 05 December 1955
• Docket Number: No. 15249.,15249.
• Parties: Herbert V. IMHOLTE, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

226 F.2d 585 (1955)

Herbert V. IMHOLTE, Appellant, v. UNITED STATES of America, Appellee.

No. 15249.

United States Court of Appeals Eighth Circuit.

November 1, 1955.

Rehearing Denied December 5, 1955.

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Joseph A. Maun, St. Paul, Minn. (William R. Busch, St. Paul, Minn., Douglas F. Thornsjo, Minneapolis, Minn., and Bundlie, Kelley & Maun, St. Paul, Minn., were with him on the brief), for appellant.

Alex Dim, Asst. U. S. Atty., St. Paul, Minn. (George E. MacKinnon, U. S. Atty., St. Paul, Minn., was with him on the brief), for appellee.

Before SANBORN, COLLET and VAN OOSTERHOUT, Circuit Judges.

COLLET, Circuit Judge.

David H. Hayden was indicted February 20, 1954, for wilfully and knowingly attempting to defeat and evade a large part of the taxes due and owing by Hayden Motor Sales, Inc., a corporation, for the year 1947, "by the filing and causing to be filed * * * a false and fraudulent return * * *." It was further charged that Herbert V. Imholte "did wilfully and knowingly aid, abet, counsel, command, induce and procure the willful and knowing attempt of the said David H. Hayden to defeat and evade a large part of the taxes due and owing by the said Hayden Motor Sales, Inc., * * * for the calendar year 1947, * * *." Hayden entered a plea of guilty and testified for the Government. Imholte was tried and convicted by a jury. From the judgment of conviction he appeals.

There is no substantial dispute concerning the facts. As defendant realizes, they must now be viewed in the light most favorable to the jury's conclusion. Defendant contends that "there is no evidence whatsoever to support the jury's verdict." That position is based upon the premise that the offense charged was the filing of a false return on March 15, 1948, that the applicable six-year statute of limitations, 26 U.S. C.A. § 3748, barred the prosecution of Imholte for any acts committed by him prior to February 20, 1948, that Imholte had nothing to do with the filing of the corporate return on March 15, 1948 (which the Government concedes) and that all evidence of Imholte's acts and conduct during the year 1947 was inadmissible, hence the above-stated contention that there was no evidence to support the conviction. If, as we shall presently discuss, the substantive charge was, as defendant asserts, that he aided and abetted in the filing of the false return (which was clearly false), there is no evidence to support the charge because it was not shown that Imholte had anything to do with the actual filing of the return except that as a notary he acknowledged Hayden's signature to it, which is not deemed of material importance. Thanks to the ability and forthrightness of counsel, there is no quibbling about facts which the jury was warranted in finding, or the inferences which could properly be drawn from facts in evidence. And the issues of law are fairly and ably presented in the briefs. The facts upon which the conviction was based will be briefly stated, leaving for determination thereafter the admissibility of the evidence establishing those facts, and the other questions of law presented.

Hayden was the principal stockholder and president of the Hayden Motor Sales, Inc.¹ Imholte was general sales manager of the Corporation. Commencing early in 1947, Hayden and Imholte had several conversations about how a portion of the proceeds of sales of automobiles could be held back by them and not shown on the corporate records for tax purposes. As a result it was agreed that a substantial portion of the sale price would be collected in cash out of which the three per cent commission of the salesmen would be deducted and the balance divided between Hayden and Imholte, the former taking 75 per cent and Imholte 25 per cent. This arrangement was carried out. Imholte would give to Hayden his 75 per cent with a slip of paper showing the actual sale price and the deductions. The amount of the sale, after the deductions, was given the Corporation's bookkeeper for the corporate records. An illustration given was the sale of a 1941 Chevrolet for $1125.00. The sale was billed by Imholte at $700.00, and that amount reported by him for the corporate records. Three per cent or $12.75 was paid the salesman as his commission, $103.05, or 25 per cent was retained by Imholte, and $309.00, or 75% was turned over to Hayden by Imholte with the slip of paper on which was shown the complete figures. Imholte did not report his 25 per cent upon his personal income tax return. When the Corporation's tax return was made up by accountants from the corporate records, the income of the corporation did not show these holdbacks. Nor would a comparison of Imholte's personal return with the corporate return disclose the holdback. The Corporation's return was filed and sworn to by Hayden. All of the holdbacks by Imholte and Hayden, which resulted in the Corporation's 1947 return being false, occurred in the year 1947, more than six years prior to the return of the indictment. Thus the first question of law arises.

Defendant asserts and the Government concedes that the act of filing a false and fraudulent return is not a continuing one in the sense that it may be said that Imholte's acts and conduct in 1947 continued over into the actual filing of the return on March 15, 1948. It was the trial court's theory that the offense charged was the attempt to evade or defeat the Corporation's taxes which culminated and became complete with the filing of the false return on March 15, 1948, and that since Imholte aided and abetted that act of attempted evasion, he is guilty of aiding the attempted evasion on March 15, 1948, within the period of limitations. We agree with the trial court.

The applicable portion of the statute upon which the indictment was based, 26 U.S.C.A. § 145 (b) is:

"Any person * * * who willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof, shall * * * be guilty of a felony * * *."

The statute is drawn in broad general terms. The willful attempt to evade or defeat any tax in any manner is the offense defined. The offense may be committed in any manner so long as there is a willful attempt to evade the tax. It may or may not be committed by the filing of a false or fraudulent return coupled with conduct which brings it within § 145(b). See United States v. Johnson, 319 U.S. 503, 63 S.Ct. 1233, 87 L.Ed. 1546. Hence that part of the indictment which refers to the filing of a false and fraudulent return is merely a specification of definiteness and certainty for the defendant's information, incorporated in the indictment originally rather than upon the subsequent order of the court in response to a motion for bill of particulars or to make more definite and certain. The fact that the great majority of such unlawful attempts to evade taxes include the act of filing a false return and that it has become customary to state such fact in the indictment does not change the offense under § 145(b), 26 U.S.C.A., from an attempt to evade, to the offense of filing a false return. In United States v. Johnson, 319 U.S. 503, 63 S.Ct. 1233, the Supreme Court points out that the offense defined by § 145(b) is the willful attempt to evade taxes and not the filing of a false return. The court there said 319 U.S. loc.cit. 514, 63 S.Ct. loc.cit. 1239:

"In short, the Circuit Court of Appeals read the substantive counts as though they charged Johnson merely with the filing of false returns on March 15th. That may only be a misdemeanor under § 145(a) of the Internal Revenue Code, but that is not the offense with which Johnson was charged. He was charged with a felony made so by § 145(b), the much more comprehensive violation of attempting `in any manner to defeat and evade' the payment of an income tax."

With the nature of the offense charged in mind, such cases as Vloutis v. United States, 5 Cir., 219 F.2d 782; United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897; United States v. Valenti, 3 Cir., 207 F.2d 242; Reass v. United States, 4 Cir., 99 F.2d 752; Ledbetter v. United States, 170 U.S. 606, 18 S.Ct. 774, 42 L.Ed. 1162; Nigro v. United States, 8 Cir., 7 F.2d 553; United States v. Krepper, 3 Cir., 159 F.2d 958, are readily distinguished.

The substantive offense being the attempt to evade the payment of the tax, and Imholte being charged with aiding and abetting Hayden in the commission of that offense, Imholte's offense was consummated when the false return was filed.² Hence the offense of aiding and abetting the attempted evasion was committed on March 15, 1948. Cave v. United States, 8 Cir., 159 F.2d 464; Wampler v. Snyder, 62 App.D.C. 215, 66 F.2d 195; Bowles v. United States, 4 Cir., 73 F.2d 772.

Imholte contends that the evidence of what he did in aiding Hayden in the latter's attempt to evade the Corporation's tax was inadmissible because those acts were committed during 1947, beyond the period of the statute of limitations.

Subject to possible exceptions, not now of importance, evidence is not admissible to establish a substantive offense which has been barred by limitations, while evidence of similar offenses to that charged is, under proper circumstances, admitted...