The opinion of the court was delivered by: Will, District Judge.
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,
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
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
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
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), it ignores
the holding there that venue for the "aiding" offense can
properly be laid at the place where the acts took effect, viz.,
where the return was filed.
The suggestion in Kelley is that the "secondary" offense of
aiding in the preparation of a false return is not complete
until the return is in fact presented and that the main offense
of preparation would logically be treated in the same manner.
This issue is not directly involved in Kelley but the approach
there implied is stated explicitly in Butzman v. United States,
205 F.2d 343 (6 Cir. 1963) cert. denied 346 U.S. 828, 74 S.Ct.
50, 98 L.Ed. 353 (1963). Butzman holds that the "main" offense
of fasely executing a document required by the internal revenue
laws is not complete until the document is in fact filed. The
statute involved in Butzman, like § 7206(1), contains no
reference to "filing". Nevertheless, the court held that an
offense against the United States requires actual filing of the
Kelley and Butzman thus lead this court to decline
application of the conclusion reached in Wyman. In addition,
the analysis underlying those decisions reveals the
deficiencies in the other arguments presented by the defendant.
While Congress may properly identify each of the several steps
involved in compliance with the revenue laws and establish
different penalties dependent on the particular conduct
involved (e. g., where the statement is not only false [§
7207], but additionally contains a signature made under
penalties of perjury), this fact does not establish a rule of
statutory construction. It does not require the conclusion that
the specific language Congress has used to identify the
distinction is the full measure of the offense to the exclusion
of all other elements generally held to be necessary in order
to state an offense against the United States. We would note in
passing that a taxing system based on the citizen's obligation
of self-assessment must have, as its logical corollary, the
citizen's right of self-correction. It would not seem possible
to conclude that obligations under the revenue laws have not
been fulfilled until the opportunity for self-correction is
lost, nor would it seem that any defect in a return could
become material until such time as the return was actually
In this same connection, the court concludes that neither
defendant's argument as to the placement of the word "make",
nor the government's contention that the term necessarily has
the same meaning throughout the revenue laws, is relevant in
determining when the offense is completed. Absent evidence of
clear congressional intent, the serious consequences
accompanying criminal liability cannot rationally depend on
such insignificant considerations, particularly when
legislation of the unequalled complexity of the internal
revenue laws is involved.
The return here involved was not delivered to the Internal
Revenue Service prior to June 15, 1959. Accordingly, the
indictment returned June 15, 1965 was returned within the
statutory period and defendant's motion to dismiss the
indictment must be denied.
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