United States v. McCormick, 195.
| Decision Date | 04 December 1933 |
| Docket Number | No. 195.,195. |
| Citation | 67 F.2d 867 |
| Parties | UNITED STATES v. McCORMICK. |
| Court | U.S. Court of Appeals — Second Circuit |
John A. Bolles, of New York City, for appellant.
George Z. Medalie, U. S. Atty., of New York City (Thomas E. Dewey and David Paley, Asst. U. S. Attys., both of New York City, of counsel), for the United States.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
On December 29, 1931, the defendant filed in the office of the collector of internal revenue for the Second district, New York, income tax returns for the years 1929 and 1930 in addition to returns for other years, and paid a tax of $20,000 and in addition thereto a 25 per cent. penalty, as assessed. He had not theretofore filed any federal returns for the income taxes in question, which should have been filed on or before the 15th day of March following each calendar year. Section 53 (a) of the Revenue Act of 1928 (26 USCA § 2053 (a) sets forth the time for filing a return as follows:
* * *"
In the autumn of 1931 the defendant was summoned in the Seabury Investigation, and, having read in the newspapers that people were being investigated, decided that he had better look after his own affairs. Consequently he went to the internal revenue office and had an interview with Henry Schillinger, a deputy collector, who made out his income tax returns from information then given by the defendant for the years 1923 to 1930, inclusive. After the tax was computed, the defendant gave Schillinger a check for the amount of the taxes assessed and for a penalty of 25 per cent. which was added to the taxes, under the instructions of the collector. After the defendant had filed these returns and paid the tax, he was indicted, on April 12, 1932, for willfully failing to file income tax returns, and was convicted under counts 5 and 7 of the indictment for such failure to file returns for the years 1929 and 1930, respectively. Section 146 (a) of the Revenue Act of 1928 (26 USCA § 2146 (a) provides that:
"Any person required under this title to pay any tax, or required by law or regulations made under authority thereof to make a return, * * * who willfully fails to pay such tax, make such return * * * at the time or times required by law or regulations, shall, in addition to other penalties provided by law, be guilty of a misdemeanor."
In order to sustain the conviction, it was necessary for the government to establish: (1) That the defendant was a person required by law to make a return for each of the years in question; (2) that he failed to file a return for each of those years at the time required by law; (3) that the failure to file each of such returns was willful.
The defendant contends that he should have been acquitted because he voluntarily filed delinquent returns. He says this is so, even though he was a person required to make a return on or before March 15th following each of the calendar years. This contention is in the face of the provision of section 146 (a) of the Revenue Act of 1928 (26 USCA § 2146 (a), which declares a person who willfully fails to make a return at the time required by law guilty of a misdemeanor "in addition to other penalties provided by law." It is argued that the payment here was a compromise of all governmental claims, civil and criminal, and such decisions as Rau v. United States (C. C. A.) 260 F. 131, Oliver v. United States (C. C. A.) 267 F. 544, and Willingham v. United States (C. C. A.) 208 F. 137, are cited to show that the payment here was a bar to subsequent criminal prosecution. But we find nothing in the present record to indicate that the payment was made to compromise claims for criminal liability. The most that can be said for defendant on account of his disclosure and payment of taxes is that such acts tended to show innocence. The argument is stronger that they only showed a desire to place himself in a safer position when it had become certain that his illegal acts were about to be discovered through an examination in the Seabury Investigation.
Under the provisions of section 51 (a) (3) of the Revenue Act (26 USCA § 2051 (a) (3), a return must be made by "(3) Every individual having a gross income for the taxable year of $5,000 or over, regardless of the amount of his net income." Undoubtedly the defendant was a person required by law to make a return.
The evidence indicates that McCormick had savings banks' deposits yielding $9,108.69 interest in 1929, and $10,483.17 in 1930. There was proof based on these items alone that returns were required for each year covered by counts 5 and 7 of the indictment. The duty to file such returns on or before March 15th following the close of each calendar year is made plain by section 53 (a) of the Revenue Act of 1928 (26 USCA § 2053 (a), already quoted. It is undisputed that no returns were filed for the periods embraced in these counts.
The only question seriously argued on the merits is whether the failure to file the returns was willful.
The defendant was deputy city clerk for the city of New York, and had a salary of $8,500 per annum. There was testimony that, in addition to his salary, he received the following moneys, claimed by the government to be income, during the years 1929 and 1930:
1929 1930
Approximately Approximately
(a) Moneys received from
bridegrooms for performing
the marriage ceremony as
deputy city clerk for the
city of New York. $16,000 $16,000
(fol. 987) (fol. 987)
(b) Moneys received as interest
on 34 savings bank
accounts. $9,108.69 $10,483.17
| (fols. 594, 595) (fol. 599)
(c) Moneys received for |
work done as the leader of |
a political district organization |
> $24,000 $13,000
| (fol. 602) (fol. 602)
(d) Moneys received from |
friends for services rendered |
in connection with the |
"looking after" fire department |
violations |
(e) Interest on $20,000, mortgage
on premises, 575 West
152d street $ 612.50 $ 1,162.50
(fol. 455) (fol. 457)
It was a duty of the defendant to perform civil marriages. Customarily, after a couple had paid a regular fee of $2, they were brought into the so-called "chapel," where McCormick sat behind a desk, in front of which the couple stood. He would read to them, quickly, a kind of ritual, and, after they were married and he had signed the marriage certificate, he would open a drawer in his desk which contained a mass of bills that had been contributed by bridegrooms — some 20's some 10's, and some of smaller amounts. According to the testimony offered by the government, he would at times merely look toward the bills, holding the marriage certificate, and wait for a contribution; at other times he would say to the bridegroom, "It is up to you"; at other times, as McCormick waited, holding the certificate, the bridegroom would ask if there was any charge, and McCormick would say, "Whatever you feel like." On occasions, when the bridegroom volunteered nothing and demanded his certificate, the certificate would be turned over, but McCormick would call the bridegroom a "cheap skate." On one occasion, where a bridegroom only paid a dollar, McCormick commented on his stinginess. He admitted on the stand that he received contributions from more than half the bridegrooms, and they averaged in the course of a year "around $16,000." It is suggested that these contributions were...
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