Silverstein v. United States, 6830.

• Decision Date: 12 May 1967
• Docket Number: No. 6830.,6830.
• Citation: 377 F.2d 269
• Parties: Jerome L. SILVERSTEIN, Defendant, Appellant, v. UNITED STATES of America, Plaintiff, Appellee.
• Court: U.S. Court of Appeals — First Circuit

377 F.2d 269 (1967)

Jerome L. SILVERSTEIN, Defendant, Appellant, v. UNITED STATES of America, Plaintiff, Appellee.

No. 6830.

United States Court of Appeals First Circuit.

Heard April 4, 1967.

Decided May 12, 1967.

Paul A. Rinden, Concord, N. H., for appellant.

Louis M. Janelle, U. S. Atty., with whom Mitchell Rogovin, Asst. Atty. Gen., and Joseph M. Howard and John M. Brant, Attys., Dept. of Justice, were on brief, for appellee.

Before ALDRICH, Chief Judge, McENTREE and COFFIN, Circuit Judges.

PER CURIAM.

Defendant was convicted and sentenced on the third and fourth counts of a four count indictment charging him with willfully making and subscribing false income tax returns in violation of the False Statement Statute, so-called.¹ Count III involves an understatement of some $2,200 in defendant's dividend income for the calendar year 1961. In Count IV he is charged with understatements of dividends, interest and capital gains for 1962; also, with taking a capital loss in 1962 which the government claims did not occur in that year.² Defendant did not dispute the discrepancies between the amounts of dividend, interest and capital gains income received and the amounts reported.³ He defended on the ground that his failure to report the true and correct amounts was not willful and intentional, but on the contary was the result of his negligence in not keeping an accurate record of these sources of income. Thus, at the trial the sole issue was the question of defendant's willfulness.

Defendant's principal complaint is that he was not permitted to establish that even had he correctly reported his full income, the total amount of additional tax would have been only a few hundred dollars.⁴ He sought to show this as being indicative of his lack of willfulness. Aside from the question of whether a jury might have thought a few hundred dollars is an insubstantial amount, we think defendant misses the point. The real issue in prosecutions under the instant statute is defendant's state of mind in reporting his income. A taxpayer might properly argue from the fact that his unreported income was small, he had unintentionally overlooked it. But this argument does not apply to the additional tax liability involved. Defendant could not have known what this latter figure was unless he first knew the amount of his additional income. If he failed to report this income, knowing what it was, then the fact that the tax involved might be thought to be slight certainly would not evidence good faith. In other words, the fact that the...