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People v. Hoffman





Appeal from the Circuit Court of Cook County; the Hon. Glynn J. Elliott, Judge, presiding.


Rehearing denied September 9, 1986.

The defendant, Harold P. Hoffman, an accountant, was charged in a four-count misdemeanor complaint with knowingly entering false information on a Retailers' Occupation Tax return. After a bench trial, the defendant was found guilty as charged in the complaint and fined $500 on each of the four counts. The defendant's post-trial motion in arrest of judgment and motion for a new trial were denied. Hoffman now appeals from the judgment of conviction entered by the circuit court of Cook County on the four counts of the complaint.

In his appeal, the defendant raises several contentions which are, inter alia, that the convictions are void because the four-count complaint was not sworn to by the complainant as required by section 111-3(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 111-3(b)); that the defendant committed no offense because the drivers named in the returns, which were prepared by him, actually were not taxpayers and were not required to file returns; that the defendant was not proved guilty beyond a reasonable doubt; that the defendant was deprived of a fair trial when the trial court improperly admitted evidence respecting defendant's preparation of tax returns for two drivers not named in the four-count complaint; that the defendant was deprived of a fair trial when the court excluded evidence that the defendant had prepared Federal tax returns properly in the past; and that the charging portion of the complaint did not properly charge the offense and that the complaint was void for duplicity.

The four-count complaint here charged the defendant, Harold Hoffman, an accountant, with violation of section 13 of the Retailers' Occupation Tax Act (Ill. Rev. Stat. 1983, ch. 120, par. 452). It charged that he knowingly entered false information on Retailers' Occupation Tax returns, "in that he did wilfully prepare in the name [of each of the four named individuals] a false and fraudulent Retailers' Occupation Tax Return, for the year 1981 [under a specific registration number] and that he knowlingly [sic] caused said fraudulent return to be filed with the Illinois Department of Revenue," in violation of chapter 120, section 452. Hoffman, an accountant, prepared the ROT returns for the four persons named in the complaint: Charles Imbergia, John Schuck, John Loerzel, and Harry Hajek. All four were called by the State and substantially testified that each was a driver of a catering truck operated by Midwest Trio Catering (Midwest), owned by Al Cimino (Cimino), that they purchased fast-food items from Midwest, loaded them onto the mobile catering trucks they leased from Midwest, and went out on a specifically assigned route, where they sold their goods to individuals, i.e., the public. They never made a bulk sale of any kind nor did they sell to gas stations, restaurants, or taverns. They received no salary from Midwest, but would pay for the goods they obtained from Midwest usually from the sales proceeds and would keep the remainder as their profit.

All four drivers also testified that they filed sales tax returns with the State of Illinois that were prepared by the defendant. The procedure for preparation of the returns for all drivers was basically the same. They would see the defendant, who was referred to them by Al Cimino, the owner of Midwest, a few times a year but would send their daily invoices to the defendant about once a month with $10 and later $15 to pay for his services. The drivers would also send the tax returns to the defendant who would complete them and return them to the drivers who would sign them, file them and pay any amount due. The drivers testified that they had no idea where the defendant obtained the dollar amount that he used on the tax returns for "sales for resale" since they had never had any sales for resale. However, they said they never questioned the defendant regarding the figure. The drivers contended that they never provided the defendant with any amount for "sales for resale," never told him that they had made wholesale or bulk sales to anyone, never telephoned him regarding this amount and that the only figures they gave the defendant were contained in the daily sales invoices. The drivers stated they did not understand the sales tax return and did not ask the defendant for any explanation.

The State also introduced the testimony of Fred Hajek and Rudy Catalano, two drivers not named in the complaint, who testified, as to an uncharged taxable year, that the defendant also prepared their Retailers' Occupation Tax returns, and although they did not provide the defendant with any figures for "sales for resale," the returns contained such figures as a reduction of gross sales.

The defendant testified that he had in fact prepared the returns in question or that his son had done so at his direction. Defendant stated that he did all the computations on the returns but did not sign the returns as the preparer. The defendant claimed that the taxable sales figures were obtained by subtracting "sales for resale" from "gross sales," and while these figures were not included in the materials sent to him by the drivers, they had been provided by the drivers by telephone or otherwise during preparation of their returns. When the defendant attempted to introduce Cimino's testimony concerning defendant's assistance during a Federal tax audit, the court sustained the objection of the State and barred the testimony.

At the conclusion of the case, the trial court substantially, on the basis of the above evidence, found the defendant guilty on all four counts of the complaint.

• 1 The defendant initially argues that the complaint was not verified, and, as such, the conviction was invalid and therefore the judgment cannot be sustained. However, the defendant never objected to the complaint here until the post-trial motion. As this court stated in People v. Castro (1982), 109 Ill. App.3d 561, 567, 440 N.E.2d 1008:

"The supreme court has consistently held that a sworn or verified complaint is not a jurisdictional prerequisite to the prosecution of a criminal offense and may be waived by a plea of guilty or by proceeding to trial without objection. [Citations.]

Here, an examination of the record shows that although defendant made several motions to dismiss count 2 prior to trial, he did not specifically object to the lack of verification until after proceeding to trial on all charges. Accordingly, we conclude that defendant has waived the verification issue for the purpose of this appeal."

Since the defendant here also did not object to the lack of verification of the complaint until subsequent to the trial, we hold here that he too has waived the issue for purposes of the appeal.

• 2 The defendant also contends that his conviction cannot stand, because, he claims, the drivers whose returns he is alleged to have prepared illegally, were not required to file such returns and, thus, no offense was committed. The defendant's position is based on a rather convoluted manner of reasoning. First, he asserts that the four drivers named in the complaint were in fact employees of Midwest and not independent contractors, and thus, Midwest is actually liable for payment of any Retailers' Occupation Tax that was due by reason of the transactions here, and, not the drivers. This he submits is supported by the fact that the State filed criminal complaints against Al Cimino, president of the catering companies involved here, ...

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