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05/15/89 the People of the State of v. Donald D. Wendt

May 15, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DONALD D. WENDT, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

539 N.E.2d 768, 183 Ill. App. 3d 389, 132 Ill. Dec. 205 1989.IL.730

Appeal from the Circuit Court of Boone County; the Hon. David A. Englund, Judge, presiding.

APPELLATE Judges:

JUSTICE LINDBERG delivered the opinion of the court. McLAREN and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Defendant, Donald D. Wendt, was charged with tax evasion (count I), perjury (count II), willfully failing to file an income tax return for the taxable year 1983 (count III), filing a fraudulent income tax return (count IV), and willfully failing to file an income tax return for the taxable year 1984 (count V) in an information filed in the circuit court of Boone County. (See Ill. Rev. Stat. 1983, ch. 38, par. 32-2; ch. 120, pars. 5-502, 13-1301; Ill. Rev. Stat. 1985, ch. 120, pars. 5-502, 13-1301.) The State proceeded to trial on count V, willfully failing to file an income tax return for the taxable year 1984. A jury found defendant guilty of this offense, and he was sentenced by the court to 2 1/2 years of probation conditioned on payment of a $2,500 fine; performance of 400 hours of community service; payment of all income taxes, interest, and penalties due the State; and service of six months of work release. Defendant has appealed from his conviction.

Defendant raises seven issues. He argues that this case should have been dismissed because (1) count V of the information was insufficient because it failed to allege that defendant was subject to the State income tax and failed to "allege any section of the [Illinois Income Tax] Act [Ill. Rev. Stat. 1985, ch. 120, par. 1-101 et seq.] setting forth an offense"; (2) "the failure of the General Assembly to abide by the provisions of Article 4, § 13 of the Illinois Constitution of 1870 [with respect to passage of the Illinois Income Tax Act] renders this prosecution void ab initio "; and (3) his "inherent right to work for a living is not a taxable privilege and therefore he was not subject to prosecution for any violation of the [Illinois Income Tax] Act." He also argues that his conviction should be reversed because (4) he was denied a fair trial by improper remarks made by the prosecutor during the State's opening statement and closing arguments; (5) the evidence was insufficient to prove beyond a reasonable doubt that defendant had willfully failed to file a 1984 income tax return; and (6) the jury was improperly instructed regarding willfulness, the Illinois Income Tax Act, and defendant's defense. Finally, defendant argues that (7) the trial court erred in denying his motion in arrest of judgment.

In 1984, Chrysler Corporation paid $33,131.95 in wages to defendant for his work at Chrysler's Belvidere assembly plant. No money was withheld to pay the Illinois income tax because defendant, who was an Illinois resident, had filed an Illinois W-4 form claiming to be exempt from withholding. Defendant testified that he filed an Illinois 1040 form for 1984 but that it was returned with a letter from the Illinois Department of Revenue telling him to sign it and to send the DOR a copy of his W-2 form. Defendant responded with a letter stating that he would sign the Illinois 1040 form if Chrysler signed the W-2 form. The records of the DOR indicated defendant did not file an Illinois 1040 form for the taxable year 1984. Defendant's primary defense was that the State failed to prove beyond a reasonable doubt that he acted willfully. In support of this defense, defendant presented evidence tending to show that, in reliance upon certain court opinions he read, articles interpreting the law and the United States Constitution he read, and speeches at certain seminars he attended, he had in good faith come to believe that he was not subject to the Illinois (and United States) income tax.

We will first consider defendant's fifth and sixth issues. In his fifth issue, defendant contends that the evidence was insufficient to prove beyond a reasonable doubt that he acted willfully in failing to file his income tax return. Defendant contends:

"There was no evidence from which the jury could infer Wendt acted with a bad purpose or without grounds for believing his actions were lawful or with careless disregard for whether or not he had the right to act as he did. In short, they could not infer willfulness from the evidence adduced at trial.

. . . The most the jury could reasonably infer from the evidence was that Wendt had a bona fide misunderstanding of the law. They could not infer a voluntary intentional violation of a known legal duty; that is the definition the [United States] Supreme Court has given to willfulness in the context of the tax statutes. [Citation.] A bona fide misunderstanding negates willfulness. [Citation.]

The evidence at trial showed Wendt honestly and sincerely believed that he was not subject to the income tax. . . . There was no evidence from which the jury could reasonably infer a voluntary, intentional violation of any known legal duty.

The subjective state of mind of Wendt during 1984 was what was at issue. So long as he subjectively believed he was not subject to the tax, and so long as such belief was held in good faith, he was not willful and therefore not guilty. [Citations.]

The judgment below imposes criminal liability on an individual who in good faith misunderstood the law. The jury's verdicts [ sic ] are contrary to the evidence that Wendt had a bona fide misunderstanding of the law."

This argument displays a profound misunderstanding of both the mental state of willfulness and the mistake-of-law defense under Illinois law.

The offense of which defendant was convicted is defined in these terms:

"Any person who is subject to the provisions of this Act and who willfully fails to file a return . . . shall, in addition to other penalties, be guilty of a Class 4 felony for the first offense and a Class 3 felony for each subsequent offense." (Ill. Rev. Stat. 1985, ch. 120, par. 13-1301.)

In People v. Clay (1988), 167 Ill. App. 3d 628, 635-36, 521 N.E.2d 243, 249, we held that a violation of this statute is an "offense" as defined in section 2-12 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 2-12). Accordingly, we applied the provision of the Criminal Code concerning the mental state of "willfulness" to section 13-1301 of the Act (Ill. Rev. Stat. 1985, ch. 120, par. 13-1301). (People v. Clay (1988), 167 Ill. App. 3d 628, 636, 521 N.E.2d 243, 249.)

The Criminal Code provides:

"Conduct performed knowingly or with knowledge is performed willfully, within the meaning of a statute using the latter term, unless the statute clearly requires another meaning." (Ill. Rev. Stat. 1985, ch. 38, par. 4-5.)

Section 13-1301 of the Act does not clearly require another meaning, so defendant willfully failed to file his income tax return if he knowingly failed to file it. See Ill. Rev. Stat. 1985, ch. 38, par. 4-5; ch. 120, 13-1301; People v. Clay (1988), 167 Ill. App. 3d 628, 636, 521 N.E.2d 243, 249.

The statute defining the applicable mental state provides:

"A person knows, or acts knowingly or with knowledge of:

(b) The result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct." (Ill. Rev. Stat. 1985, ch. 38, par. 4-5(b).)

Thus, to prove the mental element of the offense at bar, it was only necessary to prove that defendant was consciously aware that a failure to file his income tax return was practically certain to be caused by his conduct.

Section 4 -- 3 of the Criminal Code provides:

"Knowledge that certain conduct constitutes an offense, or knowledge of the existence, meaning, or application of the statute defining an offense, is not an element of the offense unless the statute clearly defines ...


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