Section 6501(c)(1) provides exceptions for the limitation period
when a false or fraudulent return has been filed with intent to
evade tax and (c)(2) applies to wilful attempt to evade or
defeat payment and makes no reference to the filing of a return.
There was evidence admitted which established that fraudulent
returns had been filed for the years 1944-46 as well as evidence
to show that a valid assessment had been made against England,
Sr., for the years in question. Defendants argue that the crime
with which they have been charged deals with attempting to defeat
and evade the payment of income taxes by a different method than
by filing false or fraudulent returns and, therefore, argue that
this is not a case of false or fraudulent return with intent to
evade tax. A wilful intent to evade taxes is not here charged.
Rather the charge is that the defendants attempted to defeat and
evade the payment of taxes which had previously been assessed.
The assessment was based upon a case of a false or fraudulent
return with the intent to evade taxes. All of the evidence
bearing on the validity or invalidity of the assessment
substantiated its validity. There was no evidence whatever to
show that the assessment was invalid. It appears that the sole
contention of the defendants as concerns the validity of the
assessment dealt with whether Section 6501(c)(2) or 6501(c)(1)
applies. Under these circumstances the question was wholly a
matter of law to be decided by the Court rather than a factual
question which should have been submitted to the jury.
In United States v. Cohen, 9th Cir., 1962, 297 F.2d 760, the
Court of Appeals for the Ninth Circuit held that a comparable
instruction, wherein the Court ruled that taxes had been duly
assessed against Cohen for certain specified years, was proper
and instructed the jury that the assessments were valid. In the
Cohen case there was some question as to whether there had been
proper notice given of the assessments. Here there is no such
question. All of the evidence substantiates the fact that the
assessment was proper, leaving for determination by the Court
only the question as to which section of the statute was
applicable. Such being a question of law, the instruction was
Even assuming that whether or not there was a valid assessment
was a question of fact, it is not reversible error for the court
in its instructions to assume the existence of facts, the
existence of which is undisputed or proved beyond controversy.
United States v. Jonikas, 7th Cir., 1952, 197 F.2d 675. And when
a fact is not made an issue by defendant and it is shown without
controversy by the evidence, the trial judge does not commit
reversible error in stating that fact to the jury. Malone v.
United States, 6th Cir., 1956, 238 F.2d 851.
Defendant England, Jr., asserts that there was no evidence
admitted against him that there had been a valid assessment made
against his father for the taxes involved and that since this was
an essential element of the case, he was entitled to acquittal.
He argues that the evidence in the case relating to the
assessment of the taxes was admitted only as to the father and
not as to him. It is true that the certificates of assessment
were admitted against England, Sr., and were not admitted against
England, Jr. The evidence, however, substantially established
that England, Jr., had knowledge that his father owed taxes, both
by his own admission and by documentary evidence and by testimony
of other witnesses.
Defendants assert that reversible error was committed when the
government's attorney referred to England, Jr., as "an ambulance
During the course of cross-examination the following resulted:
"Q. Now, I don't believe you stated any reason in
your testimony with Mr. Bigler that one of your
reasons was to get law business out of it?
"A. No, I don't believe I gave that as a reason.