State v. Sinner

• Decision Date: 03 October 1989
• Docket Number: No. 55445,55445
• Citation: 779 S.W.2d 690
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Denise SINNER, Defendant/Appellant.
• Court: Missouri Court of Appeals

Page 690

779 S.W.2d 690

STATE of Missouri, Plaintiff/Respondent, v. Denise SINNER, Defendant/Appellant.

No. 55445.

Missouri Court of Appeals,

Eastern District,

Division Four.

Oct. 3, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Nov. 8, 1989.

Application to Transfer Denied Dec. 12, 1989.

Darrill S. Beebe, St. Charles, for defendant/appellant.

William L. Webster, Atty. Gen., Robert V. Franson, Asst. Atty. Gen., Jefferson City, for plaintiff/respondent.

SATZ, Judge.

Defendant appeals her conviction for failure to file a state income tax return, with intent to defraud, in violation of § 143.931 RSMo 1986. She was sentenced to one year and fined $10,000. We affirm.

Defendant filed no Missouri income tax return for 1986. From July of that year until February, 1987, a St. Louis law firm employed defendant as a bookkeeper at an annual salary of $23,000. In that capacity, defendant was responsible for writing checks on several of the law firm's bank accounts. Defendant admits she wrote checks to herself from the firm's accounts and cashed them. The total amount of the checks was about $130,000; for 1986, the total was at least $73,000.

Defendant testified the senior shareholder in the law firm granted her permission to write herself these checks because of an alleged sexual affair between her and the shareholder. The law firm fired defendant in February, 1987. Subsequently, she was charged with failure to file a state income tax return, with intent to defraud. § 143.931. ¹

Defendant makes several arguments on appeal. Most of these rest upon her basic argument that the trial court and the prosecutor misinterpreted § 143.931. Defendant's basic argument is flawed, and, thus, defendant's corollary arguments are likewise flawed.

Under § 143.931, "[a]ny person required to make a return ... who willfully with intent to defraud fails to ... make such return" is subject to a fine or imprisonment or both. In almost any context, the definition of the term "willful" has plagued our courts. See, Comment to 1973 Proposed Code, Culpable Mental State, § 512.016. At times, prior to our present Criminal Code, it was said the use of the term "willful" in criminal statutes simply means "intentional", State v. Adams, 532 S.W.2d 524, 527 (Mo.App.1976) and, at other times, either "intentionally" or "knowingly." State v. Marston, 479 S.W.2d 481, 484 (Mo.1972). Our Criminal Code does not expressly define "willful." We think a sensible definition is reached by the federal courts in defining the term "willful", as used in the federal statute making the willful failure to file a federal income tax return a crime. 26 U.S.C. § 7203. "Willful", as used in § 7203, means the intentional violation of a known duty. United States v. Rifen, 577 F.2d 1111, 1113 (8th Cir.1977). We hold the term "willful", as used in § 143.931, means an intentional failure to file a tax return known to be legally required. Thus, a Missouri taxpayer does not commit the "crime" of willful failure to file a state tax return, § 143.931, if the taxpayer either inadvertently forgets to do so or fails to file a return because of a mistaken but bona fide belief that no return was due.

§ 143.931, however, not only requires a willful failure to file a return, but also requires an "intent to defraud." Defendant equates Missouri's statutory "intent to defraud" with the "attempt to evade or defeat" federal income tax made criminal by the United States Revenue Code. 26 U.S.C. § 7201. Under federal law, defendant argues, an "attempt to evade or defeat" federal income tax requires proof not only of "willfulness", but also of "the existence of a tax deficiency" and of "an affirmative act constituting an evasion or attempted evasion of the tax." Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 1010, 13 L.Ed.2d 882, 888 (1965). Since Missouri's "intent to defraud" is equivalent to the federal "attempt to evade or defeat" income tax, defendant reasons, proof of willful failure to file a Missouri return with "intent to defraud" requires proof not only of willfulness, but also proof of a tax deficiency and of some affirmative act from which the inference of an "intent to defraud" can be made. We disagree.

Defendant's contention that Missouri's failure-to-file law and the federal tax evasion law are equivalent is fundamentally flawed. Both Missouri statutes and the United States Internal Revenue Code draw a distinction between a willful failure to file a tax return, § 143.931 RSMo, 26 U.S.C. § 7203, and a willful attempt to evade or defeat income tax, § 143.911 RSMo, 26 U.S.C. § 7201. Missouri treats both offenses as felonies, punishable by identical penalties. Under the Internal Revenue Code, however, attempted tax evasion constitutes a felony, while failure to file is only a misdemeanor. If any Missouri statute is to be interpreted consistently with the federal tax evasion statute, it should be the Missouri tax evasion statute, § 143.911, whose language is practically identical to that of its federal counterpart. 26 U.S.C. § 7201. ²

Moreover, the federal court's insistence on proof of an act of commission to show tax evasion is derived from the federal statutory scheme and language used. Thus, the United States Supreme Court noted:

The difference between willful failure to pay a tax when due, which is a misdemeanor, and willful attempt to defeat and evade one, which is made a felony, is not easy to detect or define.

Spies v. United States, 317 U.S. 492, 497, 63 S.Ct. 364, 367, 87 L.Ed. 418, 422 (1942).

But, the Court noted it is the "attempt" to evade or defeat income tax which is made a felony. Therefore, the Court reasoned, the use of the term "attempt" reflects Congress' intent to have this felony statute reach only "affirmative action," as opposed to the "willful but passive neglect of ... statutory duty" which constitutes the § 7203 misdemeanor. Id. at 498-499, 63 S.Ct. at 367-368. Even though § 7201 prohibits attempts to evade or defeat tax "in any manner," a "positive attempt" is necessary in order to elevate that crime from the "lesser [7203] offense ... to the degree of felony." Id. at 499, 63 S.Ct. at 368. However, as shown by the identical punishment prescribed for violations of § 143.931 and § 143.911, the Missouri legislature obviously considers willful omission to file a required income tax return with intent to defraud to be as serious as willful attempt to evade or defeat income tax.

More important, perhaps, "intent" is a fact, which, more often than not, must be and is proved by circumstantial evidence. Proof that a taxpayer's income triggered the statutory duty to pay Missouri's income tax, § 143.481(1), ³ supports the inference that the taxpayer knew he had that affirmative duty. Given these facts, additional proof showing the taxpayer failed to file a tax return, despite knowledge of his duty to do so, supports the inference the taxpayer made a conscious choice not to file the return. Those facts plus proof that the taxpayer realized he actually owed taxes, support the further inference the taxpayer made the conscious choice not to file a tax return for the purpose of depriving the state of its lawful right to the taxes due. And, the basis of fraud is depriving someone of his lawful right, interest or property by fraudulent means. See, e.g. State v. Harris, 313 S.W.2d 664, 670 (Mo.1958). We see no logic, useful purpose or statutory implication requiring the intent to employ fraudulent means be shown by acts of commission rather than by a conscious omission.

Defendant contends the information charging her is fatally defective because it fails to allege any affirmative act showing her intent to defraud. This contention reflects defendant's misinterpretation of § 143.931. As shown, an affirmative act demonstrating fraud is not an element of a § 143.931 offense.

Defendant also contends the information's use of the term "intent to defraud" was too vague to enable her to prepare her defense. This contention also has no merit.

An information is sufficient if "it contains all essential elements of the offense as set out in the statute and clearly apprises defendant of the facts constituting the offense." State v. Gilmore, 650 S.W.2d 627, 628 (Mo. banc 1983), cert. den., 476 U.S. 1178, 106 S.Ct. 2906, 90 L.Ed.2d 992 (1986). An information which tracks the language of a statute describing "the entire offense by setting out the facts constituting it" is necessarily sufficient. State v. Hassler, 449 S.W.2d 881, 884 (Mo.App.1969). A defendant is, however, entitled to specific factual allegations, rather than mere recitations of statutory language, when a statute defines an offense "in generic terms" applicable to a wide variety of fact patterns. State v. Mondaine, 646 S.W.2d 372, 374-75 (Mo.App.1982).

The information filed against the defendant tracks the language of § 143.931. ⁴ It does not define the offense in generic terms. Even if the information contained inadequate detail, defendant could have obtained the requisite detail by filing a motion for a bill of particulars. State v. Baker, 676 S.W.2d 900, 902 (Mo.App.1984) . Defendant failed to do so and, therefore, waived her "right to later complain of lack of detail in the information." Id.

Defendant next contends the state failed to make a submissible case. This contention is also based upon defendant's misinterpretation of § 143.931. The state's case was clearly submissible.

To determine submissibility, we view the evidence and permissible inferences in the light most favorable to the verdict and disregard all contrary evidence and inferences. State v. Brown, 660 S.W.2d 694, 699 (Mo. banc 1983). We then determine whether the evidence, so viewed, was sufficient for reasonable persons to find the defendant guilty as charged beyond a reasonable doubt. State v. Porter, 640 S.W.2d 125, 126 (Mo.1982). If the state's case was in part based upon circumstantial evidence, that...