1. That part of par. (b) of § 146 of the Revenue Act of 1928,
which provides that any person who willfully attempts to defeat a
tax shall be guilty of a felony, is applicable to an officer of a
corporation who made a false return on its behalf in a willful
attempt to defeat part of its tax, even though making a return for
the corporation was no part of his duty. P.
293 U. S.
61.
2. The declaration of the same section, par. (c), that the term
"person," as used in the section, shall include any officer, etc.,
of a corporation
Page 293 U. S. 59
who, as such, is under duty to perform the act in respect of
which the violation occur, is to be read with the other provisions
of the same section and with § 701, defining "person" and
"including." P.
293 U. S.
61.
6 F. Supp. 315 reversed.
Appeal under the Criminal Appeals Act from a judgment quashing
an indictment.
MR. JUSTICE McREYNOLDS delivered the opinion of the Court.
This cause is here under the Criminal Appeals Act, March 2,
1907, c. 2564, 34 Stat. 1246, and § 238, Jud.Code. It necessitates
consideration of certain provisions of the Revenue Act of 1928, c.
852, 45 Stat. 791.
Section 52 of that Act commands corporations to make tax returns
sworn to by designated officers. Section 146, par.(a) declares that
any person required to make return who willfully fails so to do
shall be guilty of a misdemeanor; paragraph (b) that any person who
willfully fails to collect or truthfully account for and pay over
any tax, and any person who willfully attempts to evade or defeat
any tax shall be guilty of felony, and paragraph (c) that
"the term 'person' as used in this section includes an officer
or employee of a corporation or a member or employee of a
partnership, who as such officer, employee, or member is under a
duty to perform the act in respect of which the violation
occurs."
Section 701 provides: "When used in this chapter the term
"person" means an individual, a trust or estate, a partnership,
Page 293 U. S. 60
or a corporation;" also
"the terms 'includes' and 'including' when used in a definition
contained in this chapter shall not be deemed to exclude other
things otherwise within the meaning of the term defined."
Applicable portions of the Act are copied in the margin.*
An indictment, in the Middle District of Pennsylvania, charged
appellee, Troy, with violating § 146, par.(b), of the act (26
U.S.C.A § 2146(b)), in that, while president of the Troy Oil
Company, Incorporated, he unlawfully, willfully, and knowingly
attempted to defeat and evade a large part of the tax due from that
corporation for 1929, by making a return for it which
Page 293 U. S. 61
falsely stated the gross income. The indictment was challenged
because
"it fails to set forth that the defendant was under a duty to
perform the act in respect of which the violation occurred and in
the absence of this averment the indictment fails to set forth
facts showing
prima facie, a commission of the crime
charged in the indictment."
The trial judge sustained the objection and quashed the
indictment. In his view, it was necessary that there should be
allegation and proof that appellee, as president of the
corporation, was under a duty to make the return.
This was error; the questioned judgment must be reversed.
Section 146, par.(a), penalizes any person required to make a
return who willfully fails so to do; paragraph (b) any person under
duty to collect, account for, and pay over any tax who willfully
fails, also any person (without regard to duty) who willfully
attempts to defeat the tax, and paragraph (c) declares that the
term person as used in the section shall include an officer under
duty to perform, etc.
Considering these paragraphs along with the definitions of §
701, it seems sufficiently clear Congress did not intend that
paragraph (c) should exclude from paragraph (b) one who actually
attempted to defeat. If the charge against appellee had been
failure to make return, or pay over the tax of for the corporation,
it might have been necessary
Page 293 U. S. 62
to allege and show some duty in respect thereto; but, when
charged with willful effort to defeat the tax by presenting a false
return, no allegation of duty to make the return was necessary. The
alleged act sufficiently indicated appellee's criminal intent.
Certainly we can find no legislative purpose to exempt from
punishment one who actively endeavors to defeat a tax. And because
some officers are said to be included in the term "person," all
other individuals are not necessarily excluded.
Thus, construed, all parts of the statute may have effect, and
the manifest purpose of Congress will not be obstructed.
Reversed.
* No. 26.
United States v. Troy. Appeal from the
District Court of the United States for the Middle District of
Pennsylvania. November 5, 1934. Judgment reversed, per stipulation
of counsel to abide the decision in No. 25.
* Revenue Act 1928, c. 852, 45 Stat. 791, 808, 855, 878, §§ 52,
146, 701.
"Sec. 52. Corporation Returns."
"(a) Requirement. Every corporation subject to taxation under
this title shall make a return, stating specifically the items of
its gross income and the deductions and credits allowed by this
title. The return shall be sworn to by the president,
vice-president, or other principal officer and by the treasurer or
assistant treasurer. . . ."
"Sec. 146. Penalties."
"(a) Any person required under this title to pay any tax, or
required by law or regulations made under authority thereof to make
a return, keep any records, or supply and information, for the
purposes of the computation, assessment, or collection of any tax
imposed by this title, who willfully fails to pay such tax, make
such return, keep such records, or supply such information at the
time or times required by law or regulations, shall, in addition to
other penalties provided by law, be guilty of a misdemeanor and,
upon conviction thereof, be fined not more than $10,000, or
imprisoned for not more than one year, or both, together with the
costs of prosecution."
"(b) Any person required under this title to collect, account
for, and pay over any tax imposed by this title, who willfully
fails to collect or truthfully account for and pay over such tax,
and any person who willfully attempts in any manner to evade or
defeat any tax imposed by this title or the payment thereof, shall,
in addition to other penalties provided by law, be guilty of a
felony and, upon conviction thereof, be fined not more than
$10,000, or imprisoned for not more than five years, or both,
together with the costs of prosecution."
"(c) The term 'person' as used in this section includes an
officer or employee of a corporation or a member or employee of a
partnership, who as such officer, employee, or member is under a
duty to perform the act in respect of which the violation
occurs."
"Sec. 701. Definitions."
"(a) When used in this chapter --"
"(1) The term 'person' means an individual, a trust or estate, a
partnership, or a corporation. . . ."
"(b) The terms 'includes' and 'including' when used in a
definition contained in this chapter shall not be deemed to exclude
other things otherwise within the meaning of the term defined."