United States v. Albanese

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Writing for the Court: Archibald Palmer, New York City, for defendants
• Citation: 117 F. Supp. 736
• Decision Date: 14 January 1954
• Parties: UNITED STATES v. ALBANESE et al.

117 F. Supp. 736

UNITED STATES
v.
ALBANESE et al.

United States District Court S. D. New York.

January 14, 1954.

117 F. Supp. 737

J. Edward Lumbard, U. S. Atty., New York City, for United States; Peter M. Brown, Asst. U. S. Atty., New York City, of counsel.

Archibald Palmer, New York City, for defendants.

IRVING R. KAUFMAN, District Judge.

Defendants move for a dismissal of Counts I and III of an indictment which charges them in four counts with attempting to defeat and evade a large part of the taxes due and owing by them to the United States in violation of Title 26 U.S.C.A. § 145(b).

The ground urged by the defendants for dismissal is that the offenses referred to "are not alleged to have been committed in the Southern District of New York."

Count I charges that the defendant Philip Albanese willfully attempted to defeat and evade a large part of the income tax due the United States for 1947 by willfully preparing and causing to be prepared and mailed in the Southern District of New York a false and fraudulent income tax return for the year 1947 which was filed with the Collector of Internal Revenue at Albany, New York. The count alleges that the return was fraudulent in that Philip Albanese alleged that he was an employee of a loading business, whereas in truth and fact he was the employer and had received a net income from the business substantially greater than was set forth in the return.

Count III charges that both Philip Albanese and Rosario Albanese willfully attempted to defeat and evade a large part of the income tax owing by Philip Albanese to the United States for the calendar year 1949, by preparing and causing to be prepared and mailed in the Southern District of New York a false and fraudulent tax return which was filed with the Collector of Internal Revenue at Albany, New York, wherein the net income of Philip Albanese was falsely stated at $2,340.73 instead of $13,127.59, the actual figure.

The defendants' contention is that since the returns were filed in Albany, the offense, if any, was committed there and that prosecution in this district on the aforesaid two counts is faulty in the light of Rule 18, Federal Rules of Criminal Procedure, 18 U.S.C.A., which provides in part that

"* * * prosecution shall be had in a district in which the offense was committed * * *."

The defendants' motion is based upon an erroneous interpretation of Section 145(b) of the Internal Revenue Code, under which they have been indicted. Section 145(b) reads as follows:

"Failure to collect and pay over tax, or attempt to defeat or evade tax. Any person required under this chapter to collect, account for, and pay over any tax imposed by this chapter, who willfully fails to collect or truthfully account for and pay over such tax, and any person who willfully attempts in any manner to evade or defeat any tax imposed by this chapter or the payment thereof, shall, in addition to other penalties provided by law, be guilty of a felony and, upon conviction thereof, be fined not more than $10,000, or imprisoned for not more than five years, or both, together with the costs of prosecution." Title 26 U.S.C.A. § 145(b).

It is to be noted that the statute involved here does not make filing the essential element constituting the offense. Indeed, the subsection contains no reference...