United States v. Albanese
Decision Date | 14 January 1954 |
Citation | 117 F. Supp. 736 |
Parties | UNITED STATES v. ALBANESE et al. |
Court | U.S. District Court — Southern District of New York |
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.
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' 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:
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 to filing or to tax returns whatever. The statute specifically states that it is an offense for any person willfully to attempt "in any manner to evade or defeat any tax * * *" and, indeed, while the willful failure to file a return for a calendar year or a failure to pay a tax is a misdemeanor, Section 145(a), the willful attempt by affirmative acts to evade and defeat a tax is a felony, under Section 145(b).
Hence, in Spies v. United States, 1943, 317 U.S. 492, at page 499, 63 S.Ct. 364, 368, 87 L.Ed. 418, the Supreme Court interpreted the language of Section 145(b) as follows:
It is clear therefore that a successful prosecution under Section 145(b) does not require a filing of a false return. The Section punishes fraudulent conduct which comprises "attempts in any manner to evade or defeat any tax". The acts of filing the false returns alleged in Counts I and III were but the final steps in the alleged fraudulent attempts committed in this district to defeat or evade the tax. The acts of filing, however, do not constitute the gravamen of the offense defined in Section 145(b).
Title 18 U.S.C.A. § 3237, is pertinent for it provides in part:
"Except as...
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United States v. Stofsky
...the act or acts of evasion and that venue will lie where these acts occurred. This Court agrees. 26 U.S.C. § 7201; United States v. Albanese, 117 F.Supp. 736 (S.D.N.Y.1954). Cf. Spies v. United States, 317 U.S. 492, 499-500, 63 S.Ct. 364, 368, 87 L.Ed. 418, 423 (1943). It remains for the go......
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Reynolds v. United States, 15284.
...returns were filed. See the conflicting decisions in United States v. Aaron, D.C.N.D.W.Va., 117 F. Supp. 952, and United States v. Albanese, D.C.S.D.N.Y., 117 F.Supp. 736. The charge in the case at bar, however, includes the making of false records and the concealment of assets, and if any ......
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United States v. Albanese, 273-274
...the defendants made a motion to dismiss two counts of the indictment for improper venue, which Judge Kaufman denied. United States v. Albanese, D.C., 117 F.Supp. 736. The counts, dealing with different years, alleged that the defendants knowingly attempted to evade a part of the taxes owed ......
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Beaty v. United States, 6760.
...returns were filed. See the conflicting decisions in United States v. Aaron, D.C.N.D.W.Va., 117 F.Supp. 952, and United States v. Albanese, D.C.S.D. N.Y., 117 F.Supp. 736. The charge in the case at bar, however, includes the making of false records and the concealment of assets, and if any ......