U.S. v. Calhoun

• Decision Date: 27 January 1978
• Docket Number: No. 77-5175,77-5175
• Parties: 78-1 USTC P 9203 UNITED STATES of America, Plaintiff-Appellee, v. Gerrold E. CALHOUN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 969

566 F.2d 969

78-1 USTC P 9203

UNITED STATES of America, Plaintiff-Appellee, v. Gerrold E. CALHOUN, Defendant-Appellant.

No. 77-5175.

United States Court of Appeals Fifth Circuit.

Jan. 27, 1978.

Jose E. Martinez, Miami, Fla., John L. O'Donnell, Jr., Orlando, Fla., for defendant-appellant.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Myron C. Baum, Acting Asst. Atty. Gen., Tax Div., Gilbert E. Andrews, Chief, Appellate Section, M. Carr Ferguson, Asst. Atty. Gen., Robert E. Lindsay, James A. Bruton, Attys., Daniel W. Schermer, Dept. of Justice, Washington, D. C., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TUTTLE, CLARK and RONEY, Circuit Judges.

TUTTLE, Circuit Judge:

The defendant, Gerrold E. Calhoun, was indicted on two counts of tax evasion for the years 1969 and 1970, in violation of 26 U.S.C. § 7201, ¹ and two counts of failure to file income tax returns covering the same years, in violation of 26 U.S.C. § 7203. ² The jury was unable to reach a verdict as to Counts I and II, which embraced the tax evasion allegations, and those counts subsequently were dismissed on the government's motion. Guilty verdicts were returned as to the remaining counts of failure to file. After denying motions for acquittal and a new trial, the district court sentenced defendant to pay a $5,000 fine and to serve a one-year term of imprisonment on each count. The prison term as to Count IV was suspended and a two-year probation term imposed, conditioned upon payment of the fines and cooperation with the I.R.S. in determining defendant's tax liability for the years in question. We affirm.

It is undisputed that defendant did not file an income tax return in 1969 or 1970, despite the fact that he earned taxable income and incurred income tax liabilities during those years. ³ Count III of the indictment alleged that

during the calendar year 1969, the Defendant, . . . who was a resident of Leesburg, Florida, had and received gross income in excess of $600; that by reason of such income he was required by law, . . . on or before April 15, 1970, to make an income tax return to the District Director of Internal Revenue for the Internal Revenue District of Florida, at Jacksonville, Florida, in the Middle District of Florida . . .; and . . . he did willfully and knowingly fail to make said income tax return to the said Director . . . or to any other proper officer of the United States of America, in violation of Title 26, United States Code, Section 7203. (emphasis added)

Count IV alleged a similar failure to file a return on April 15, 1971, covering tax year 1970. Defendant argues on appeal that since the government's proof established that he was not required to file a return until June 15 of both years, there exists a fatal variance between the indictment and the proof. See United States v. Pandilidis, 524 F.2d 644, 647-49 (6th Cir. 1975), cert. denied, 424 U.S. 933, 96 S.Ct. 1146, 47 L.Ed.2d 340 (1976); United States v. Goldstein, 502 F.2d 526, 528-31 (3d Cir. 1974). We find no merit in defendant's contention.

The Internal Revenue Code requires all calendar-year taxpayers ⁴ to make a return on or before April 15 following each tax year during which the taxpayer earns in excess of a specified amount of taxable income. 26 U.S.C. § 6072(a). However, as authorized by § 6081(a) of the Code, 26 U.S.C. § 6081(a), extensions of the normal time-for-filing requirement have been granted to some taxpayers. Specifically, United States citizens "residing or traveling outside the United States and Puerto Rico" on April 15 ⁵ are authorized to make their return on or before June 15 of the same year. Treas.Reg. § 1.6081-2(a)(5). In all such cases, "a statement must be attached to the return showing that the (taxpayer) is a person" entitled to the extension. Id. The essence of defendant's position is that since the government failed to prove that he was a resident of the United States during 1969 and 1970, and since the evidence showed that he was living in St. Croix, Virgin Islands and St. Maarten, Netherlands Antilles during those years, he was not required to file a return until June 15 of each year. Although we find merit in the government's position that the defendant had the burden of establishing his whereabouts on April 15 of the years in question, ⁶ we need not reach the burden of proof issue to resolve the question before us against the defendant.

In our view, the Regulation clearly attempts to accommodate taxpayers who, under the prescribed circumstances, are unable to comply with the normal time-for-filing requirement. On its face, the Regulation requires the taxpayer not only to file a return by June 15, but also to justify his claim to the right to file at that later time. The defendant here never filed a return for 1969 or 1970 and, of course, never attempted to justify an application of the exception. Under these circumstances, we hold that the defendant cannot now invoke the extension provided by § 1.6081-2(a)(5). ⁷ The drafters of the Regulation, in our opinion, simply could not have envisioned that a taxpayer should be permitted to ignore the normal filing deadline, never file a return, and subsequently be able to claim the benefit of the extension in an effort to defeat a criminal prosecution predicated upon his failure to file. Indeed, to permit such a result would fly in the face of the regulation's purpose and impose severe legal and administrative burdens on the taxing authorities.

In all criminal prosecutions, the defendant is entitled to be tried in the district in which "the crime shall have been committed." U.S.Const. amend. VI. The crime of failure to file an income tax return is committed in the judicial district in which the taxpayer is required to file. As previously noted, the indictment in this case alleged that defendant was required to file in the Middle District of Florida and failed to do so. Defendant now claims that the proof failed to establish his residency in that district and that he therefore was not required to file there. It is argued that this "(f)ailure to prove venue" requires a reversal of the conviction.

The general rule is that a taxpayer shall make his return "to the Secretary or his delegate . . . in the internal revenue district" of his "legal residence" or at the designated service center for that district. 26 U.S.C. §§ 6091(b)(1)(A)(i), (ii). An exception is provided for citizens whose "principal place of abode" for the tax period covered by the filing is outside the United States. 26 U.S.C. § 6091(b)(1)(B)(ii). The applicable Regulation provides as follows:

The following income tax returns shall be filed with the Director of International Operations, Internal Revenue Service . . .:

(b) Income tax returns of an individual citizen of the United States whose principal place of abode for the period with respect to which the return is filed is outside the United States. A taxpayer's principal place of abode will be considered to be outside the United States if his legal residence is outside the United States or if his return bears a foreign address.

Treas.Reg. § 1.6091-3(b) (emphasis added). Defendant argues that since the evidence established that his legal residence during 1969 and 1970 was either St. Croix or St. Maarten, he was not required to file in the Revenue District specified in the indictment but with the Director of International Operations. Of course, since he did not make any return whatsoever, defendant is foreclosed from relying upon the foreign address portion of the Regulation.

On the basis of our study of the record in the district court, we conclude that defendant's argument must fail. The court instructed the jury that in order to convict they had to find beyond a reasonable doubt that the defendant was a legal resident of the Middle District during the two years in question. The term "legal residence" was defined as follows:

"Legal residence" means the permanent fixed place of abode which one intends to be his residence and to return to it despite temporary residences elsewhere, or absences. In determining whether the Defendant was a legal resident of the Leesburg (Florida) area, you may consider whether or not the Defendant intended to reside indefinitely in St. Croix or St. Maarten, or whether or not he intended to remain in St. Croix or St. Maarten permanently or whether he intended to return from those islands to the Leesburg area.

We find this instruction proper and must assume that the jury evaluated the evidence in light of the court's statement of the law. The verdicts of guilt then necessarily encompassed a finding that defendant was a legal resident of the Middle District, and we conclude that there is sufficient evidence in the record to sustain that finding.

Stated briefly, the record shows that defendant and his wife lived in Cocoa Beach, Florida from the time of their marriage in 1958 until 1962 or 1963 when they moved to the Bahamas. They lived together in an apartment in Freeport until December 1964, at which time they were divorced. Defendant apparently remained in Freeport for a period of time after the divorce and built a frame office and living accommodations there. ⁸ There was testimony at trial that defendant and his brother performed as musicians in several Florida cities during 1967 and early 1968. Sometime during the summer of 1969, defendant went to St. Croix, Virgin Islands, to do some carpentry work as a subcontractor on a condominium housing project. ⁹ In October 1969 defendant began another subcontracting job in St. Maarten, Netherlands Antilles, and apparently moved there in early 1970. ¹⁰ In March 1971 defendant returned to St. Croix and, in September or October of that same year, returned to Florida. During the years 1969 and 1970, defendant maintained bank accounts in Cocoa Beach and Leesburg, Florida, and received a series of loans from those...