People v. Kasparis, Docket No. 54407

• Decision Date: 17 June 1981
• Docket Number: Docket No. 54407
• Citation: 309 N.W.2d 241,107 Mich.App. 294
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Chris P. KASPARIS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 241

309 N.W.2d 241

107 Mich.App. 294

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Chris P. KASPARIS, Defendant-Appellant.

Docket No. 54407.

Court of Appeals of Michigan.

June 17, 1981.

Released for Publication Aug. 26, 1981.

Paul L. Bricker, E. David Brockman, Detroit, Max J. Pitlosh, Mount Clemens, for the People.

Marty A. Burnstein, Marvin Kramer, Southfield, for Chris P. Kasparis.

Before KAUFMAN, P. J., and ALLEN and RILEY, JJ.

RILEY, Judge.

Defendant was charged in a two-count complaint with filing a false monthly sales tax return in violation of M.C.L. § 205.74; M.S.A. § 7.545 and perjury in connection with the preparation of the return in violation of M.C.L. § 205.74; M.S.A. § 7.545 and the general perjury statute, M.C.L. § 750.423; M.S.A. § 28.665.

Defendant successfully moved in district court to quash the perjury count on the ground that he had not made a "false swearing". An interlocutory appeal was taken to the Macomb County Circuit Court, where the judge reversed in an opinion and order entered on September 2, 1980. Defendant sought leave to appeal to this Court and leave was granted on November 24, 1980.

The pertinent facts are as follows. Beginning in February of 1978, defendant leased a catering truck from Pat's Catering Service of Warren, Inc., in Warren, Michigan. The business sells ready-to-eat food and drinks to route drivers who, in turn, resell the food and drink items from their trucks at industrial and commercial establishments. Defendant was such a catering-truck driver.

In connection with the business, the defendant was required to, and did, sign and file monthly sales tax returns. The prosecution contends that the statements contained in the defendant's March, 1979, return were false and made with the intent to defraud the State of Michigan. In the present appeal, defendant contends, as he did below, that he is not subject to a perjury prosecution because the sales tax return he filed was not under oath, sworn to, or verified. The sales tax return signed by the defendant contained the following language:

"TAXPAYER'S CERTIFICATION: ¹ Under penalties of perjury, I hereby certify that I have examined the return and that the statements made and the figures shown herein and in all accompanying schedules are to the best of my knowledge and belief a true and complete return made in good faith."

The first issue is whether defendant's signing of the sales tax return, as provided by the Michigan Department of Treasury, constituted a "swearing to" or "verification" of the return within the meaning of former M.C.L. § 205.74; M.S.A. § 7.545, thereby subjecting defendant to the strictures of the general perjury statute.

The prosecution in the instant case is brought under the former General Sales Tax Act (repealed by 1980 P.A. 164). The former act provided in pertinent part:

"In addition to the foregoing penalties, any person who shall knowingly swear to or verify any false or fraudulent return, or any return containing any false or fraudulent statement, with the intent to defraud or to aid, abet or assist in defrauding the state, shall be guilty of the offense of perjury, and on conviction thereof, shall be punished in the manner provided by law." Former M.C.L. § 205.74; M.S.A. § 7.545. (Emphasis added.)

The general perjury statute provides:

"Any person authorized by any statute of this state to take an oath, or any person of whom an oath shall be required by law, who shall, wilfully swear falsely, in regard to any matter or thing, respecting which such oath is authorized or required, shall be guilty of perjury * * *" M.C.L. § 750.423; M.S.A. § 28.665. (Emphasis added.)

It is clear from the above that both acts require a false swearing, that is, a statement made under oath. Indeed, the gravamen of the offense of perjury is false swearing. In People v. Kennedy, 9 Mich.App. 346, 155 N.W.2d 855 (1968), the defendant was accused, pursuant to the general perjury statute, of making a false statement under oath to a grand juror. The prosecution failed to introduce evidence at the preliminary examination that the statement was made under oath. This Court held that "false swearing is essential to the crime of perjury". People v. Kennedy, supra, 348, 155 N.W.2d 855.

The people point to Internal Revenue Service (IRS) form 1040 and offer language contained therein as evidence that the language contained in the sales tax return is understood to be a verification within the meaning of the general perjury statute:

"Under penalties of perjury, I declare that I have examined this return, including accompanying schedules and statements, and to the best of my knowledge and belief, it is true, correct, and complete." IRS form 1040.

The people's reliance on IRS form 1040 is misplaced. An individual who knowingly makes a false statement pursuant to form 1040 does not commit the crime of perjury. The language of form 1040 is authorized by Federal statutes ² and was analyzed in Escobar v. United States, 388 F.2d 661 (CA 5, 1967), a prosecution under the Federal statute. In Escobar, the Court of Appeals held that conviction pursuant to the statute does not constitute perjury.

"The language 'made under penalties of perjury' is of purely historical significance. The phrase remains in the present statute as a 'catch phrase' or 'signpost' to indicate what types of documents are covered by the statute. * * *

"When viewed in this light it is understandable that Congress left the phrase in the statute and that the Internal Revenue Service left the statement in its return forms after the statute requiring the returns to be sworn to was repealed." (Footnotes omitted.) Escobar, supra, 664-665.

In 1979, the Michigan State Bar committee for the revision of the criminal code published a proposed Second Revised Criminal Code. Chapter 49 contains the following:

"4901. Definition of terms * * * (1) The definitions in Section 4501 and 4701 are applicable in this chapter unless the context otherwise requires.

"(2) 'Oath' includes an affirmation and every other mode authorized by law of attesting to the truth of that which is stated. For the purpose of this chapter, written statements shall be treated as if made under oath under either of the following circumstances :

"(a) The statement was made on or pursuant to a form bearing notice, authorized by law, to the effect that false statements made therein are made under penalties of perjury." (Emphasis added.)

The committee comments include the following:

"The term 'oath' as defined in Section 4901(2) also includes an affirmation. This is consistent with present policy (see, e. g., C.L.1970, Sections 600.1432 and 600.1434). A new concept, adopted by Model Penal Code Section 241.3 and New York Revised Penal Law Section 210.45, is introduced in subparagraph (2)(a) of Section 4901. Under this provision, statements made on official forms bearing notice that answers are made under penalties of perjury will be treated as if they were made under oath. This will be applicable primarily to matters covered under Section 4906 (perjury in the second degree) rather than Section 4905 (first degree), since the latter is limited to statements made in official proceedings. Subparagraph (2)(a) is designed to provide government agencies with a convenient method of demanding the truth in applications and registrations without resort to the cumbersome procedures of requiring oaths before notaries. In terms of the function of the perjury provisions, it should not matter whether the state's special emphasis on receiving truthful information is indicated by a requirement of an oath or affirmation, or by written notice on a government form." (Emphasis added.) Committee Commentary to §§ 4905-4906, p. 468.

The foregoing illustrates that the drafters of the proposed criminal code were of the opinion that the terms "oath" or "false swearing" as presently used in the general perjury statute do not include statements made on official forms bearing notice that answers are made under the penalties of perjury.

The next question is whether the Department of Treasury was "authorized" or "required by law" to include on its return forms the notification that answers are made under the penalty of perjury.

In People v. Emmons, 11 Mich.App. 660, 162 N.W.2d 117 (1968), this Court reversed the perjury conviction of a defendant who was convicted pursuant to the assumed name statute, M.C.L. § 445.1; M.S.A. § 19.821, after falsely signing a notary's certification. The statute did not require an oath or affidavit. The Court stated that the fact that the defendant swore falsely as to the truth of the certificate was of no significance if the oath was not required or authorized.

"The crime of perjury under our statute, supra, is not committed unless the oath is one that is authorized or required by law." People v. Emmons, supra, 661, 162 N.W.2d 117.

By comparison, a perjury conviction was upheld by this Court in People v. Lumbard, 94 Mich.App. 16, 287 N.W.2d 354 (1979), where the defendant filed an application for welfare assistance which contained false statements. The application form signed by defendant contained a declaration that under the penalties of perjury the application had been read by the applicant and that the facts contained therein were true. In that case, however, the Social Welfare Act ³ contained explicit authority for such a provision to be included on the welfare application form. This Court held that:

"The plain words of this statute evidence a legislative intention that the crime of perjury be charged against anyone who intentionally files an untruthful application for welfare assistance." People v. Lumbard, supra, 18, 287 N.W.2d 354.

In the present prosecution, the former General Sales Tax Act did not require a sworn or verified return. Section 6 of that act simply required that "(t)he monthly return shall be...