The opinion of the court was delivered by: Hoffman, District Judge.
The defendant, Louis S. Bahcall, has moved to dismiss the
indictment in this case, which involves alleged evasion of income
taxes due and owing by the Western Supply and Furnace Company, a
corporation. The motion is based principally on the omission of
the Government to specify in the indictment Bahcall's specific
capacity, relationship or connection with the defendant
corporation. Bahcall also alleges that the indictment is
defective in that it does not allege sufficient facts to
constitute an indictable offense by the individual defendant and
that the indictment does not set forth sufficient facts to show
the existence of all the elements which under Section 145(b),
26 U.S.C.A., are necessary to constitute an indictable offense. The
defendant avers further that the indictment is defective because
it does not state the means by which he attempted to defeat and
evade part of the tax due.
Subsection (b) was intended to cover any person who wilfully
attempts to evade a tax. The statute undoubtedly was meant to
cover not only derelict officers and employees but all others who
attempt to evade taxes. It is therefore not essential that the
capacity of the individual defendant be alleged. Certainly the
omission of the characterization does not render the indictment
fatally defective. United States v. Troy, 293 U.S. 58, 55 S.Ct.
23, 79 L.Ed. 197; Locke v. United States, 5 Cir., 166 F.2d 449.
As to the other grounds for dismissal raised by the defendant,
reference is made to the case of Guzik v. United States, 7 Cir.,
54 F.2d 618, certiorari denied 285 U.S. 545, 52 S.Ct. 395, 76
L.Ed. 937, where it was held that an indictment charging the
filing of a return showing income less than that actually
received was properly drawn under the statute punishing a wilful
attempt to evade tax; and in Capone v. United States, 7 Cir.,
56 F.2d 927, it was held that an indictment need not specify the
means whereby the defendant attempted to evade or defeat income
tax. Again, in
United States v. Miro, 60 F.2d 58, it was held that the
particular means employed in an attempt to evade income tax need
not be alleged in an indictment for such an offense. Also, in the
case of United States v. Mangiaracina, D.C.Mo., 92 F. Supp. 96,
it was held that an indictment charging, inter alia, the
concealing of the defendant's true gross and net income for a
specified year was sufficient against a motion to dismiss.
The motion of the defendant, Louis S. Bahcall, to dismiss the
indictment is denied.
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