United States v. Abelow

• Decision Date: 14 April 1936
• Citation: 14 F. Supp. 304
• Parties: UNITED STATES v. ABELOW.
• Court: U.S. District Court — Southern District of New York

14 F. Supp. 304

UNITED STATES v. ABELOW.

District Court, S. D. New York.

April 14, 1936.

Martin Conboy, Sp. Asst. to Atty. Gen., for the United States.

Donovan, Leisure, Newton & Lumbard, of New York City, for defendant.

BYERS, District Judge.

The defendant is charged, in an indictment containing two counts, with committing perjury, and has filed a demurrer.

The basis of the charge is that on September 28, 1934, in this district, he signed and swore to an affidavit, before a competent notary public, which affidavit he knew to be false in two particulars:

(a) That the export to Bolivia of 15 machine guns manufactured by Colts Patent Fire Arms Manufacturing Company of Hartford, Connecticut, had been authorized by the State Department of the United States Government.

(b) That a copy of the export bill of lading or other evidence of exportation, covering the export of 15 machine guns from the United States to Bolivia, was on file and readily accessible for inspection by an authorized official of the United States.

Of course the defendant by demurring admits that the affidavit was false, but seeks to avoid going to trial, because of asserted infirmities of the indictment.

The affidavit was signed and sworn to, in order that the manufacturer of the machine guns might avoid the payment of the tax imposed by section 610 of the Revenue Act of 1932, 26 U.S.C.A. § 1420 et seq. note (of 10% of the selling price of the firearms), through the operation of section 627 of the same statute, 26 U.S.C.A. § 1420 et seq. note, whereby section 1121 of the Revenue Act of 1926, 44 Stat. 121, 26 U.S.C.A. § 1125, is called into play; that provision is to the effect that "under such rules and regulations as the Commissioner with the approval of the Secretary may prescribe" such taxes "shall not apply in respect of articles sold or leased for export * * * and in due course so exported * * *."

Article 3 of Regulations 46 provides that this tax is payable by the manufacturer upon all sales "whether made directly or through an agent * * *."

Section 626 of the Revenue Act of 1932, 26 U.S.C.A. § 1420 et seq. note, provides that the person liable for the tax shall make monthly returns under oath "and pay the taxes imposed by this title to the collector" where his principal place of business is located. And that without assessment or notice by the latter official the tax shall be due and payable at the time fixed for filing the return.

Article 67 of Regulations 46 calls for the making of the return on form 728.

Thus it will be seen that if during September, 1934, the Colt Company made a sale of these 15 machine guns, it would have been required to make a return and pay the tax arising upon that sale, according to its return for that month, unless the sale were for export and that fact were made to appear in accordance with the regulations.

The latter are as follows (Regulations 46):

"Art. 74. Sales for Export. — In order for a sale to be exempt from tax under section 1121 it is necessary that two conditions be met, namely, (1) that the article must be identified as having been sold for export and (2) that it must have been exported in due course.

"An article will be regarded as having been sold for export if the manufacturer has in his possession at the time title passes or at the time of shipment (whichever is prior), (a) a written order or contract of sale showing that the manufacturer is to ship the article to a foreign destination; or (b) where delivery by the manufacturer is to be made within the United States, a sworn statement from the purchaser showing (1) that the article is purchased to fill existing or future orders for delivery to a foreign destination; or that the article is purchased for resale to another person engaged in the business of exporting who will export the article, and (2) that such article will be transported to its foreign destination in due course prior to use or further manufacture and prior to any resale except for export.

"In these cases the manufacturer, for a period of six months from the date when title passes or the date of shipment (whichever is prior), is excused from paying tax on the article sold. If within such period the manufacturer has not received, and attached to the order or contract proper `proof of exportation' (see Art. 75), then the temporary exemption ceases and the manufacturer shall include the tax on the sale of such article in his return for the month in which such 6-month period expires.

"Art. 75. Proof of Exportation. — Exportation may be evidenced by (1) a copy of the export bill of lading, or (2) a certificate by the agent or representative or the export carrier showing actual exportation of the article, or (3) a certificate of landing signed by a customs officer of the foreign country to which the article is exported, or (4) where such foreign country has no customs administration, a sworn statement of a foreign consignee covering receipt of the article.

"In any case where the manufacturer is not the exporter, such manufacturer must have in his possession an affidavit from the person to whom he sold the article stating that the article was in fact exported in due course or was sold to another person who in due course exported the article. This affidavit must state what evidence is available which will show that the article was in fact exported in due course prior to use or further manufacture and prior to resale in the United States other than for export. Such evidence must be that referred to under either (1), (2), (3), or (4) above, and the affidavit must show where such evidence is readily available for inspection by Government officers.

"In all cases the sales records together with the evidence of the proof of exportation must be preserved by the manufacturer for a period of at least four years from the last day of the month following the sale, and must be readily accessible for inspection by internal revenue officers.

"In any case where the manufacturer does not have in his possession within the 6-month period proof of exportation as outlined herein, the manufacturer must pay the tax involved. If proof of exportation later becomes available, a claim for refund of any tax paid may be filed on Form 843, or a credit may be taken upon any subsequent monthly return, but such action must be taken within the 4-year period of limitation prescribed by section 3228, United States Revised Statutes, as amended."

The foregoing establish the statutory and regulatory background of this indictment, except as to the Joint Resolution of Congress bearing date of May 28, 1934, to be hereinafter noted.

It will be seen that the false affidavit of the defendant was the document falling within so much of Article 75 of Regulations 46 as applies when the manufacturer is not the exporter.

It is alleged in the second count, but not the first, that the Curtiss-Wright Export Corporation was the purchaser of these machine guns; the first count states that the defendant's affidavit was an affidavit of export. The language is: "the said defendant made a written declaration in behalf of Curtiss-Wright Export Corporation, to wit, an affidavit of export, authorized by the Revenue Laws of the United States and the regulations duly promulgated thereunder, in which it was required to be stated that articles had been in due course exported from the United States, which said affidavit was sent, * * * in behalf of Curtiss-Wright Export Corporation to the Colts * * * Company * * *, the manufacturer of said articles, in which * * * the defendant did unlawfully * * * and contrary to his said oath state and subscribe that the State Department * * * had authorized the export of * * * 15 machine guns, to Bolivia, which * * * was a material matter which by a law of the United States was required to be truly stated under oath, and the defendant * * * did not believe the matter so stated by him to be true * * *" and that he knew it to be false.

As to the first count then, the charge of perjury is directed to the false statement that the State Department had authorized the export of 15 machine guns to Bolivia.

The second count deals with another false aspect of the same affidavit, and the pertinent parts of the charge are: "* * * the defendant made * * * an affidavit of export, authorized by the Revenue Law * * * and the Regulations duly promulgated thereunder, which required the purchaser of articles exported from the United States to specify the evidence of exportation * * * which said affidavit was sent * * * in behalf of Curtiss-Wright * * *, the purchaser of articles exported * * * to the Colts * * * Company * * *, the manufacturer of the articles exported, in which said written declaration the said defendant did unlawfully, wilfully * * * and contrary to his said oath state and subscribe that a copy of the export bill of lading or other evidence of exportation covering the export of 15 machine guns * * * was on file and readily accessible for inspection by an authorized official of the United States which said statement * * * was a material matter which by law * * * was required to be truly stated under oath * * * and the said defendant * * * did not believe the matter so stated by him to be true and the said matter was * * * false as the defendant well knew," etc.

The attacks upon the indictment may be briefly summarized as follows:

First: That the false statement concerning the authorization by the State Department was immaterial, because it was the fact of export, and not the fact of authorization, which was required to be shown.

Second: That Article 75 of the Regulations respecting the purchaser's oath was without legal warrant, and therefore the concededly false affidavit does not support a charge of perjury.

Third: That the indictment does not allege that the untrue affidavit was that of the purchaser.

In connection with the first contention, it must be understood that between May...