Appeal from the United States District Court for the Southern District of Illinois, Northern Division - No. RI-CR-75-11 ROBERT D. MORGAN, Judge.
Cummings, Bauer, Circuit Judges, and Robert A. Grant, Senior Judge.*fn*
In August 1975, a two-count criminal information was returned against defendant. Count I charged that on January 2, 1974, defendant willfully and falsely stated on a Form W-4E Withholding Exemption Certificate that he incurred no liability for Federal income tax for 1973 and anticipated no such liability for 1974, in violation of 26 U.S.C. § 7205.*fn1 Count II was to like effect with respect to 1974 and 1975. The jury returned a verdict of guilty, and defendant was placed on probation for a concurrent period of three years as to each count.
The statute cited in the information makes criminal a refusal to comply with 26 U.S.C. § 3402. 26 U.S.C. § 3402(f)(2)(A) provides:
"On or before the date of the commencement of employment with an employer, the employee shall furnish the employer with a signed withholding exemption certificate*fn2 relating to the number of withholding exemptions which he claims, which shall in no event exceed the number to which he is entitled."
In turn, 26 U.S.C. § 3402(n) provides in pertinent part:
"Notwithstanding any other provision of this section, an employer shall not be required to deduct and withhold any tax under this chapter upon a payment of wages to an employee if there is in effect with respect to such payment a withholding exemption certificate (in such form and containing such other information as the Secretary or his delegate may prescribe) furnished to the employer by the employee certifying that the employee -
"(1) incurred no liability for income tax imposed under subtitle A for his preceding taxable year, and
"(2) anticipates that he will incur no liability for income tax imposed under subtitle A for his current taxable year.
"The Secretary or his delegate shall by regulations provide for the coordination of the provisions of this subsection with the provisions of subsection (f)."
For the years in question, defendant delivered to his employer, Sandstrom Products, Inc. of Port Byron, Illinois, executed Treasury Form W-4Es containing the following language:
"Under penalty of perjury, I certify that I incurred no liability for Federal income tax for 1973 and that I anticipate that I will incur no ...