United States v. Horwitz

• Decision Date: 06 December 1965
• Citation: 247 F. Supp. 412
• Parties: UNITED STATES of America v. Simmie S. HORWITZ.
• Court: U.S. District Court — Northern District of Illinois

247 F. Supp. 412

UNITED STATES of America v. Simmie S. HORWITZ.

Cr. 432.

United States District Court N. D. Illinois, E. D.

December 6, 1965.

Edward V. Hanrahan, U. S. Atty., Richard G. Schultz, Asst. U. S. Atty., Chicago, Ill., for United States.

Harvey M. Silets, Harris, Burman & Silets, Chicago, Ill., for Simmie S. Horwitz.

WILL, District Judge.

MEMORANDUM OPINION

This case arises out of an indictment, returned June 15, 1965, charging that the defendant, Simmie S. Horwitz, wilfully and knowingly made and subscribed a 1958 corporate tax return verified by a written declaration that it was made under the penalties of perjury while knowing and believing that the return was not true as to every material matter, in violation of 26 U.S.C. § 7206 (1).

Defendant moves to dismiss the indictment, contending that it is barred by the applicable statute of limitations, 26 U.S.C. § 6531(5). Under the circumstances set out below, a single question is presented: When is the offense proscribed by § 7206(1) completed for purposes of starting the statutory period? Since the day of the offense is excluded and the day of indictment included, United States v. Mahler, 181 F.Supp. 900 (S.D.N.Y.1960), the indictment here before the court is barred only if the offense charged was committed prior to June 15, 1959.

Defendant subscribed the return on June 12, 1959. A stamp mark on the return indicates that it was "Received" on June 16. While the date stamped on the return is not necessarily the actual day of receipt, see United States v. Mahler, supra, 181 F.Supp. at 902 n. 3, defendant does not contend that the return was received by the Internal Revenue Service on June 12, 13 or 14 which were a Friday, Saturday and Sunday respectively. For the reasons stated below, we hold that the conduct proscribed by § 7206(1) does not mature into an indictable offense until the date of the return's actual receipt by the Internal Revenue Service. Under these circumstances, a determination of the actual date of receipt, whether June 15 or 16, is unnecessary. The instant indictment is barred only if the return was received prior to June 15 and defendant does not contend that it was. Accordingly, his motion to dismiss the indictment must be denied.

The main thrust of the defendant's argument is that § 7206(1) is distinguished from other offenses detailed in the Internal Revenue Code by the element of subscription. Accordingly, he contends that the offense is complete the moment the allegedly false document is signed regardless of when filed or if never filed. Additionally, he notes that the statute refers to "making and subscribing" a return, suggesting that the placement of the word "make" before "subscribe" indicates a reference to the act of preparing the return to the exclusion of its filing, notwithstanding the fact that, in other sections of the Code, the phrase "make a return" has been construed to include and require the act of filing the return. Finally, the defendant points to United States v. Wyman, 125 F.Supp. 276 (W.D.Mo.1954). Wyman, while not dealing with the statute of limitations, states that the offense of falsely subscribing a return is committed at the place where the subscription is affixed and that a prosecution for the offense must therefore be brought in that district rather than in the district where the return was filed. The basis for this conclusion is not stated by the court and the opinion deals principally with the charge of aiding in the preparation and presentment of a false return brought against a co-defendant, the court holding that the act of mailing from the Eastern District to the Western District would not be treated as an act of presentation in the Western District.

We believe that this second aspect of the Wyman decision demonstrates the departure which Wyman makes from the general trend of case law both as to the main offense (i. e., falsely subscribing the return) and as to the offense of aiding in preparation and presentation. While the Wyman court cites United States v. Kelley, 105 F.2d 912 (2 Cir. 1939),...