United States v. Alper

• Decision Date: 14 December 1961
• Docket Number: Cr. No. 1-61.
• Citation: 200 F. Supp. 155
• Parties: UNITED STATES of America v. Jerome ALPER.
• Court: U.S. District Court — District of New Jersey

200 F. Supp. 155

UNITED STATES of America v. Jerome ALPER.

Cr. No. 1-61.

United States District Court D. New Jersey.

December 14, 1961.

David M. Satz, Jr., U. S. Atty., by Robert R. Blasi, Asst. U. S. Atty., Newark, N. J., for plaintiff.

Herbert L. Zuckerman, Newark, N. J., for defendant.

MEANEY, District Judge.

The defendant, Jerome Alper, moves to dismiss an information filed by the United States Attorney for the District of New Jersey on the ground that at the time of filing, the statute of limitations had expired.

Originally, an information was filed against the defendant Alper, charging him with failing to file an income tax return for the year 1954 under the provisions of Title 26 U.S.C. § 7203. The original information filed on January 4, 1961, alleged the commission of the offense on April 15, 1955, the last date for filing income tax returns of the nature of the one which the defendant Alper was supposed to file. However, this information did not take into consideration the fact that there were two grants of extension of time allowed to the defendant by the Internal Revenue Service. This omission was pointed out in a motion to dismiss the original information, which motion was denied by the Honorable William F. Smith, before whom argument was heard, with leave to renew the motion "directed against a new complaint or a new information or amended information."

Nothing further seems to have been done until August 19, 1961, when the United States Attorney filed the instrument which is the subject of the present controversy, wherein the same offense is charged, failure to file an income tax return for the year 1954, but taking into consideration the two extensions of time granted defendant Alper by the Internal Revenue Service, and setting the time of failure as of the expiration of the second extension.

In the motion at present before the court the defendant alleges that the statute of limitations has run and that therefore prosecution is barred. There is no question about the six year statute of limitations, nor is there any question about the fact that included in the language of the statute (Section 6531 of the 1954 Internal Revenue Code) is the statement that "for the purpose of determining the periods of limitation on criminal prosecutions, the rules of section 6513 shall be applicable." Section 6513(a) states that "for purposes of this subsection, the last day prescribed for filing the return * * * shall be determined without regard to any extension of time granted the taxpayer * * *."

The statute of limitations applicable in the instant case, then, is to run from April 15, 1955, regardless of the granted extensions and the fact that during this time no offense of failure...