Respondent was convicted of violating 26 U.S.C. § 7206(1), which
makes it a felony when one "[w]illfully makes and subscribes any
return . . . which he does not believe to be true and correct as to
every material matter," after the District Court refused a lesser
included offense jury charge under § 7207, which makes it a
misdemeanor when one "willfully delivers or discloses" to the
Internal Revenue Service any return or document "known by him to be
fraudulent or to be false as to any material matter." The Court of
Appeals reversed on the ground that "willfully," as used in § 7206,
implied an evil motive and bad faith, but the same word, as used in
§ 7207, required only a showing of unreasonable, capricious, or
careless disregard for the truth.
Held: The word "willfully" has the same meaning in §§
7206(1) and 7207, connoting the voluntary, intentional violation of
a known legal duty, and the distinction between the statutes is
found in the additional misconduct that is essential to the
violation of the felony provision; hence, the District Court
properly refused the requested lesser included offense instruction
based on respondent's erroneous contention that the word
"willfully" in the misdemeanor statute implied less
scienter than the same word in the felony statute. Pp.
412 U. S.
350-361.
455 F.2d 612, reversed and remanded. ,
BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, STEWART, WHITE, MARSHALL, POWELL, and
REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting statement,
post, p.
412 U. S.
362.
Page 412 U. S. 347
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
Chapter 75, subchapter A, of the Internal Revenue Code of 1954,
as amended, 26 U.S.C. §§ 7201-7241, is concerned with tax crimes.
Sections 7201-7207, inclusive, which in the aggregate relate to
attempts to evade or defeat tax, to failures to act, and to fraud,
all include the word "willfully" in their respective contexts.
Specifically, § 7206 is a felony statute, and reads:
"§ 7206. Fraud and false statements."
"Any person who -- "
"(1) Declaration under penalties of perjury."
"Willfully makes and subscribes any return, statement, or other
document, which contains or is verified by a written declaration
that it is made under the penalties of perjury, and which he does
not believe to be true and correct as to every material matter. . .
."
"
* * * *"
"shall be guilty of a felony and, upon conviction thereof, shall
be fined not more than $5,000, or imprisoned not more than 3 years,
or both, together with the costs of prosecution."
Section 7207 is a misdemeanor statute, [
Footnote 1] and reads:
"7207. Fraudulent returns, statements, or other documents. "
Page 412 U. S. 348
"Any person who willfully delivers or discloses to the Secretary
or his delegate any list, return, account, statement, or other
document, known by him to be fraudulent or to be false as to any
material matter, shall be fined not more than $1,000, or imprisoned
not more than l year, or both."
This case presents the issue of the meaning of the critical word
"willfully" as it is employed in these two successive statutes. Is
its meaning the same in each, or is the willfulness specified by
the misdemeanor statute, § 7207, of somewhat less degree than the
felony willfulness specified by § 7206?
I
Respondent, Cecil J. Bishop, was convicted by a jury on all
three counts of an indictment charging him with felony violations
of § 7206(1) with respect to his federal income tax returns for the
calendar years 1963, 1964, and 1965. The Court of Appeals, holding
that a lesser included offense instruction directed to the
misdemeanor statute, § 7207, was improperly refused by the trial
judge, reversed the judgment of the District Court and remanded the
case for a new trial. 455 F.2d 612 (CA9 1972). Since the meaning of
"willfully," as used in the tax crime statutes, has divided the
circuits, [
Footnote 2] we
granted certiorari. 409 U.S. 841 (1972).
Page 412 U. S. 349
We conclude that it was proper and correct for the District
Court to refuse the lesser included offense instruction. In our
view, the word "willfully"has the same meaning in both statutes.
Consequently, we reverse and remand so that the Court of Appeals
may now proceed to consider the additional issues that court found
it unnecessary to reach.
II
Mr. Bishop is a lawyer who has practiced his profession in
Sacramento, California, since 1951. During that period, he owned an
interest in a walnut ranch he and his father operated. In 1960, his
secretary, Louise, married his father. The father died, and
thereafter respondent's stepmother managed the ranch.
Respondent periodically sent checks to Louise. These were used
to run the ranch, to pay principal on loans, and to make
improvements.
Louise maintained a record of ranch expenditures and submitted
an itemized list of these disbursements to respondent at the end of
each calendar year. In his 1963 return, respondent asserted as
business deductions all amounts paid to Louise and, in addition,
all the expenses Louise listed. This necessarily resulted in a
double deduction for all ranch expenditures in 1963. Moreover, some
of these expenditures were for repayment of loans and for other
personal items that did not qualify as income tax deductions. In
his 1964 and 1965 returns, respondent similarly included
nondeductible amounts among the ranch figures that were
deducted.
The aggregate amount of improper deductions taken by respondent
for the three taxable years exceeded
Page 412 U. S. 350
$45,000. He enjoyed aggregate gross income for those years of
about $70,000.
The incorrectness of the returns as filed for the three years
was not disputed at trial. Transcript of Trial 869-872, 1148.
Neither is it disputed here. Brief for Respondent 4.
III
Section 7206(1), the felony statute, is violated when one
"[w]illfully makes and subscribes any return," under penalties of
perjury, "which he does not believe to be true and correct as to
every material matter." Respondent based his defense at trial on
the ground that he was not aware of the double deductions asserted
in 1963 or of the improper deductions taken in the three taxable
years. He claimed that his law office secretary prepared the return
schedules from his records and from the information furnished by
Louise; he merely failed to check the returns for accuracy.
Respondent requested lesser included offense instructions based
on the misdemeanor statute, § 7207. This tax misdemeanor is
committed by one "who willfully delivers or discloses" to the
Internal Revenue Service any return or document "known by him to be
fraudulent or to be false as to any material matter." Respondent
argued that the word "willfully" in the misdemeanor statute should
be construed to require less
scienter than the same word
in the felony statute. App. 28. With the state of respondent's
guilty knowledge in dispute, his proposed instructions would have
allowed the jury to choose between a misdemeanor based on caprice
or careless disregard and a felony requiring evil purpose. The
trial judge declined to give the requested instructions and,
instead, gave an instruction only on the felony, requiring a
finding by the jury that the defendant intended
Page 412 U. S. 351
"with evil motive or bad purpose either to disobey or to
disregard the law." App. 24.
After the guilty verdict on all counts was returned, respondent
was sentenced to two years' imprisonment on each count, the
sentences to run concurrently. The court, however, suspended all
but 90 days of each sentence and placed respondent on probation for
five year on condition that he pay a fine of $5,000. App. 31.
IV
The Court of Appeals relied upon and followed, 455 F.2d at 614,
a series of its own cases, [
Footnote 3] particularly
Abdul v. United States,
254 F.2d 292 (1958), enunciating the proposition that the word
"willfully" has a meaning in tax felony statutes that is more
stringent than its meaning in tax misdemeanor statutes. [
Footnote 4] Our examination of these
Ninth Circuit precedents in the light of this Court's decisions
leads us to conclude that the Court of Appeals' opinion cannot be
sustained by this asserted distinction between § 7206(1) and §
7207.
A. The Ninth Circuit rule appears to have been evolved from
language in this Court's opinion in
Spies v. United
States, 317 U. S. 492
(1943). In
Spies, the defendant requested an instruction
to the effect that an affirmative act was necessary to constitute a
willful attempt to evade or defeat a tax within the meaning of §
145(b) of the Revenue Act of 1936, 49 Stat. 1703. The trial
court
Page 412 U. S. 352
refused the request. The Second Circuit affirmed. This Court
reversed. We were concerned in
Spies with a felony
statute, § 145(b), applying to on "who willfully attempts in any
manner to evade or defeat any tax," and with a companion
misdemeanor statute, § 145(a), applying to one 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."
These statutes were the predecessors of the current §§ 7201 and
7203, respectively, of the 1954 Code. In distinguishing between the
two offenses, the Court said:
"The difference between willful failure to pay a tax when due,
which is made a misdemeanor, and willful attempt to defeat and
evade one, which is made a felony, is not easy to detect or define.
Both must be willful, and willful, as we have said, is a word of
many meanings, its construction often being influenced by its
context.
United States v. Murdock, 290 U. S.
389. It may well mean something more as applied to
nonpayment of a tax than when applied to failure to make a return.
Mere voluntary and purposeful, as distinguished from accidental,
omission to make a timely return might meet the test of
willfulness. But in view of our traditional aversion to
imprisonment for debt, we would not, without the clearest
manifestation of Congressional intent, assume that mere knowing and
intentional default in payment of a tax, where there had been no
willful failure to disclose the liability, is intended to
constitute a criminal offense of any degree. We would expect
willfulness in such a case to include some element of evil motive
and want of justification in view of all the financial
circumstances of the taxpayer."
"Had § 145(a) not included willful failure to pay a tax, it
would have defined as misdemeanors generally
Page 412 U. S. 353
a failure to observe statutory duties to make timely returns,
keep records, or supply information -- duties imposed to facilitate
administration of the Act even if, because of insufficient net
income, there were no duty to pay a tax. It would then be a
permissible, and perhaps an appropriate, construction of § 145(b)
that it made felonies of the same willful omissions when there was
the added element of duty to pay a tax. The definition of such
nonpayment as a misdemeanor, we think, argues strongly against such
an interpretation."
317 U.S. at
317 U. S.
497-498.
In
Abdul, the court considered an appeal by a taxpayer
convicted of tax misdemeanors (§ 2707(b) of the 1939 Code and §
7203 of the 1954 Code) based on failure to file, but acquitted of
tax felonies (§ 2707(c) of the 1939 Code and § 7202 of the 1954
Code) based on failure to account for and pay withholding taxes.
The defense was inability to pay. The trial judge instructed the
jury that the term "willful" in the misdemeanor counts meant, among
other things, "capriciously or with a careless disregard whether
one has the right so to act," whereas the same word in the felony
counts meant
"with knowledge of one's obligation to pay the taxes due and
with intent to defraud the Government of that tax by any
affirmative conduct."
254 F.2d at 294. Relying on Spies, the Court of Appeals approved
these instructions, and concluded that
"the word 'willful,' as used in the misdemeanor statute, means
something less when applied to a failure to make a return than as
applied to a felony non-payment of a tax. This being true, then the
words used in the instruction defining 'willful' as relates to a
misdemeanor adequately and clearly point up that difference."
Ibid.
Page 412 U. S. 354
Because of an error in the cross-examination of
Abdul,
his conviction was reversed. On retrial, he was again convicted. He
appealed, and the judgment was affirmed.
Abdul v. United
States, 278 F.2d 234 (CA9 1960). When
Abdul sought
certiorari, the Solicitor General conceded that the sentence under
one of the counts could not stand, and undertook to say that the
Government would present to the District Court a motion for
correction of the sentence. Certiorari, accordingly, was denied.
Two Justices would have granted the writ to review the correctness
of the charge "regarding the requirement of willfulness." 364 U.S.
832 (1960).
In the present case, the Court of Appeals continued this
Abdul distinction between willfulness in tax misdemeanor
charges and willfulness in tax felony charges. Section 7207, it was
said, requires only a showing of "unreasonable, capricious, or
careless disregard for the truth or falsity of income tax returns
filed," whereas § 7206(1) "requires proof of an evil motive and bad
faith." 455 F.2d at 615. The level of willfulness, thus, would
create a disputed factual element that made appropriate a lesser
included offense instruction.
B. The decisions of this Court do not support the holding in
Abdul, and implicitly they reject the approach taken by
the Court of Appeals. In
Spies, the Court speculated, 317
U.S. at
317 U. S.
495-498, that Congress could have distinguished between
the regulatory aspects of the tax system, which call for compliance
regardless of financial status, and the revenue-collecting aspects,
which may place demands on a taxpayer he cannot meet. Since the
antecedent of § 7203 (as does that section itself today) punished
both failure to file and failure to pay as misdemeanors, the Court
concluded that Congress had not drawn the line between felonies and
misdemeanors on the basis of distinctions between the system's
regulatory aspects and its revenue-collecting aspects. The
reliance
Page 412 U. S. 355
in
Abdul on that hypothetical statutory scheme,
discussed by this Court in
Spies but found not in line
with what Congress had actually done, was misplaced. Utilizing the
unsupported
Abdul distinction as a foundation, the Court
of Appeals constructed the further general distinction between tax
felonies and tax misdemeanors, a distinction also inconsistent with
prior decisions of this Court.
In
Berra v. United States, 351 U.
S. 131 (1956), a defendant was convicted of violating
the antecedent of § 7201, namely, § 145(b) of the 1939 Code, a
felony statute identical, for present purposes, with the section of
the same number in the Revenue Act of 1936 at issue in
Spies. The defendant claimed that he was entitled to a
lesser included offense instruction based on § 3616(a) of the 1939
Code, the antecedent of § 7207. The Court rejected this contention,
concluding that the two sections of the 1939 Code then "covered
precisely the same ground." 351 U.S. at
351 U. S. 134.
Implicit in this was the conclusion that the level of intent
required for tax misdemeanors was not automatically lower than the
level of intent required for tax felonies.
Although the misdemeanor statute, § 3616(a), proffered by the
defendant in
Berra did not contain the word "willfully,"
the
Berra facts were presented to the Court again in
Sansone v. United States, 380 U.
S. 343 (1965), when the misdemeanor statutes there in
issue, §§ 7207 and 7203 of the 1954 Code, both contained the word
"willfully." [
Footnote 5] In
Sansone, the Court rejected the argument
Page 412 U. S. 356
that a set of facts could exist that would satisfy the
willfulness element in the § 7207 misdemeanor, but not in the §
7201 felony:
"Given petitioner's material misstatement which resulted in a
tax deficiency, if, as the jury obviously found, petitioner's act
was willful in the sense that he knew that he should have reported
more income than he did for the year 1957, he was guilty of
violating both §§ 7201 and 7207. If his action was not willful, he
was guilty of violating neither."
380 U.S. at
380 U. S. 353.
The same analysis was applied to the requested lesser included
offense instruction for § 7203.
Id. at
380 U. S. 352.
The clear implication of the decision in
Sansone is that
the word "willfully" possesses the same meaning in §§ 7201, 7203,
and 7207.
Sansone thus foreclosed the argument that the
word "willfully" was to be given one meaning in the tax felony
statutes and another meaning in the tax misdemeanor statutes.
The thesis relied upon by the Court of Appeals, therefore, was
incorrect.
V
It would be possible, of course, that the word "willfully" was
intended by Congress to have a meaning in § 7206(1) different from
its meaning in § 7207, and we turn now to that possibility.
We continue to recognize that context is important in the quest
for the word's meaning.
See United States v. Murdock,
290 U. S. 389,
290 U. S.
394-395 (1933). Here, as in
Spies, the
"legislative history of the section[s] contains nothing helpful
on the question here at issue, and we must find the answer from the
[sections themselves] and [their] context in the revenue laws.
[
Footnote 6]"
317 U.S.
Page 412 U. S. 357
at
317 U. S. 495.
We consider first, then, the sections themselves.
A. Respondent argues that both §§ 7206(1) and 7207 apply to a
fraudulent "return," and cover the same ground if the word
"willfully" has the same meaning in both sections. Since
"it would be unusual and we would not readily assume that
Congress by the felony . . . meant no more than the same
derelictions it had just defined . . . as a misdemeanor,"
317 U.S. at
317 U. S. 497,
respondent concludes that Congress must have intended to require a
more willful violation for the felony than for the misdemeanor.
The critical difficulty for respondent is that the two sections
have substantially different express terms. The most obvious
difference is that § 7206(1) applies only if the document "contains
or is verified by a written declaration that it is made under the
penalties of perjury." No equivalent requirement is present in §
7207. Respondent recognizes this, but then relies on the presence
of perjury declarations on all federal income tax returns, a fact
that effectively equalizes the sections where a federal tax return
is at issue.
See 26 U.S.C. § 6065(a). [
Footnote 7]
This approach, however, is not persuasive, for two reasons.
First, the Secretary or his delegate has the power under § 6065(a)
to provide that no perjury declaration is required. If he does so
provide, then § 7207
Page 412 U. S. 358
immediately becomes operative in the area theretofore covered by
§ 7206(1). Second, the term "return" is not necessarily limited to
a federal income tax return. A state or other nonfederal return
could be intended, and might not contain a perjury warning. If this
type of return were submitted in support of a federal return, or in
the course of a tax audit, § 7207 could apply even if § 7206(1)
could not.
There are other distinctions. The felony applies to a document
that a taxpayer "[w]illfully makes and subscribes . . . and which
he does not believe to be true and correct as to every material
matter," whereas the misdemeanor applies to a document that a
taxpayer "willfully delivers or discloses to the Secretary or his
delegate . . . known by him . . . to be false as to any material
matter." In the felony, then, the taxpayer must verify the return
or document in writing, and he is liable if he does not
affirmatively believe that the material statements are true. For
the misdemeanor, however, a document prepared by another could give
rise to liability on the part of the taxpayer if he delivered or
disclosed it to the Service; additional protection is given to the
taxpayer in this situation, because the document must be known by
him to be fraudulent or to be false.
These differences in the respective applications of §§ 7206(1)
and 7207 provide solid evidence that Congress distinguished the
statutes in ways that do not turn on the meaning of the word
"willfully." Judge Hastie, in analyzing this Court's holding in
Spies, appropriately described this distinction as
follows:
"However, this distinction is found in the additional misconduct
which is essential to the violation of the felony statute . . . ,
and not in the quality
Page 412 U. S. 359
of willfulness which characterizes the wrongdoing."
United States v. Vitiello, 363 F.2d 240, 243 (CA3
1966). Thus, the word "willfully" may have a uniform meaning in the
several statutes without rendering any one of them surplusage. We
next turn to context.
B. The hierarchy of tax offenses set forth in §§ 7201-7207,
inclusive, utilizes the mental state of the offender as a guide in
establishing the penalty. Section 7201, relating to attempts to
evade or defeat tax, has been described and recognized by the Court
as the "climax of this variety of sanctions" and as the
"capstone of a system of sanctions which singly or in
combination were calculated to induce prompt and forthright
fulfillment of every duty under the income tax law and to provide a
penalty suitable to every degree of delinquency."
Spies, 317 U.S. at
317 U. S. 497;
Sansone, 380 U.S. at
380 U. S.
350-351. The actor's mental state is described both by
the requirement that acts be done "willfully" and by the
designation of certain express elements of the offenses. In § 7201,
for example, the Court has held that, by requiring an attempt to
evade, "Congress intended some willful commission in addition to
the willful omissions that make up the list of misdemeanors."
Spies, 317 U.S. at
317 U. S. 499.
Similarly, in § 7207, the Government must show that the document
was known by the taxpayer to be fraudulent or to be false as to a
material matter.
All these offenses, except two subsections of § 7206,
viz., subsections (3) and (4), require that acts be done
"willfully." Although the described states of mind might be
included in the normal meaning of the word "willfully," the
presence of both an express designation and the simultaneous
requirement that a violation be committed "willfully" is strong
evidence that Congress used
Page 412 U. S. 360
the word "willfully" to describe a constant, rather than a
variable, in the tax penalty formula. [
Footnote 8]
The Court, in fact, has recognized that the word "willfully" in
these statutes generally connotes a voluntary, intentional
violation of a known legal duty. It has formulated the requirement
of willfulness as "bad faith or evil intent,"
Murdock, 290
U.S. at
290 U. S. 398, or
"evil motive and want of justification in view of all the financial
circumstances of the taxpayer,"
Spies, 317 U.S. at
317 U. S. 498,
or knowledge that the taxpayer "should have reported more income
than he did."
Sansone, 30 U.S. at
30 U. S. 353.
See James v. United States, 366 U.
S. 213,
366 U.S.
221 (1961);
McCarthy v. United States, 394 U.
S. 459,
394 U. S. 471
(1969).
This longstanding interpretation of the purpose of the recurring
word "willfully" promotes coherence in the group of tax crimes. In
our complex tax system, uncertainty often arises even among
taxpayers who earnestly wish to follow the law. The Court has
said,
"It is not the purpose of the law to penalize frank difference
of opinion or innocent errors made despite the
Page 412 U. S. 361
exercise of reasonable care."
Spies, 317 U.S. at
317 U. S. 496.
Degrees of negligence give rise in the tax system to civil
penalties. The requirement of an offense committed "willfully" is
not met, therefore, if a taxpayer has relied in good faith on a
prior decision of this Court.
James v. United States, 366
U.S. at
366 U.S. 221-222.
Cf. Lambert v. California, 355 U.
S. 225 (1957). The Court's consistent interpretation of
the word "willfully" to require an element of
mens rea
implements the pervasive intent of Congress to construct penalties
that separate the purposeful tax violator from the well meaning,
but easily confused, mass of taxpayers.
Until Congress speaks otherwise, we therefore shall continue to
require, in both tax felonies and tax misdemeanors that must be
done "willfully," the bad purpose or evil motive described in
Murdock, supra. We hold, consequently, that the word
"willfully" has the same meaning in § 7207 that it has in §
7206(1). Since the only issue in dispute in this case centered on
willfulness, it follows that a conviction of the misdemeanor would
clearly support a conviction for the felony. [
Footnote 9] Under these circumstances, a lesser
included offense instruction was not required or proper, for, in
the federal system, it is not the function of the jury to set the
penalty.
Berra v. United States, 351 U.S. at
351 U. S.
134-135.
Page 412 U. S. 362
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings.
It is so ordered.
MR JUSTICE DOUGLAS would affirm the judgment of the Court of
Appeals for the Ninth Circuit on the opinion written for that court
by Judge Powell. 455 F.2d 612.
[
Footnote 1]
Title 18 U.S.C. § 1 defines felony and misdemeanor:
"§ 1. Offenses classified."
"Notwithstanding any Act of Congress to the contrary: "
"(1) Any offense punishable by death or imprisonment for a term
exceeding one year is a felony."
"(2) Any other offense is a misdemeanor."
[
Footnote 2]
Compare United States v. Vitiello, 363 F.2d 240, 243
(CA3 1966) (§§ 7201 and 7203),
and Haner v. United States,
315 F.2d 792, 794 (CA5 1963) (§ 7203), where the Ninth Circuit
analysis was rejected,
with United States v. Fahey, 411
F.2d 1213 (CA9),
cert. denied, 396 U.S. 957 (1969) (§
7203);
Martin v. United States, 317 F.2d 753 (CA9 1963) (§
7203);
Abdul v. United States, 254 F.2d 292 (CA9 1958) (§§
2707(b) and (c) of the 1939 Code
and §§ 7202 and 7203 of
the 1954 Code).
See also Janko v. United States, 281 F.2d
156, 166-167 (CA8 1960),
rev'd on confession of error by the
Solicitor General, 366 U. S. 716
(1961) (§§ 7201 and 7207);
Lumetta v. United States, 362
F.2d 644, 646 n. 3 (CA8 1966) (§§ 7201 and 7203);
Escobar v.
United States, 388 F.2d 661 (CA5 1967),
cert. denied,
390 U.S. 1024 (1968) (§§ 7206(1) and 7207). Other inconsistencies
in interpreting the word "willfully" have compounded the confusion.
See n 8,
infra. Cf. United States v. Lachmann, 469 F.2d
1043 (CA1 1972) (§§ 7201 and 7203).
[
Footnote 3]
United States v. Haseltine, 419 F.2d 579, 581 (1970)
(§§ 7201 and 7203);
United States v. Fahey, n 2,
supra; Eustis v. United States,
409 F.2d 228 (1969) (§ 7203);
Edwards v. United States,
375 F.2d 862 (1967) (§§ 7201, 7203, and 7206(2));
Martin v.
United States, n 2,
supra; Abdul v. United States, n 2,
supra.
[
Footnote 4]
One possible result of this distinction, of course, is that the
Government's burden in a misdemeanor case could be less than in a
felony case.
[
Footnote 5]
The applicability of § 3616(a) of the 1939 Code to income tax
returns was not contested in
Berra v. United States,
351 U. S. 131,
351 U. S. 133
(1956), but the Court soon held that that statute "did not apply to
evasion of the income tax."
Achilli v. United States,
353 U. S. 373,
353 U. S. 379
(1957). In
Sansone, however, statutory revisions effected
by the enactment of the 1954 Code were held to make § 7207
applicable to income tax violations.
Sansone v. United
States, 380 U. S. 343,
380 U. S.
347-349 (1965).
[
Footnote 6]
See H.R.Rep. No. 1337, 83d Cong., 2d Sess., A425
(1954); S.Rep. No. 1622, 83d Cong., 2d Sess., 502-603 (1954). The
predecessor to § 7206(1) was § 3809(a) of the 1939 Code. The
antecedent to § 7207 was, as we have noted above, § 3616(a) of the
1939 Code.
See Sansone, 380 U.S. at
380 U. S.
347.
[
Footnote 7]
"§ 6065. Verification of returns."
"(a) Penalties of perjury."
"Except as otherwise provided by the Secretary or his delegate,
any return, declaration, statement, or other document required to
be made under any provision of the internal revenue laws or
regulations shall contain or be verified by a written declaration
that it is made under the penalties of perjury."
See also Treas.Reg. § 1.6065-1 (1972).
[
Footnote 8]
Semantic confusion sometimes has been created when courts
discuss the express requirement of an "attempt to evade" in § 7201
as if it were implicit in the word "willfully" in that statute.
This type of analysis produces language suggesting that "willfully"
in § 7201 has a different meaning from the same term in § 7203.
See United States v. Ming, 466 F.2d 1000, 1004 (CA7),
cert. denied, 409 U.S. 915 (1972) (§§ 7201 and 7203);
United States v. Matosky, 421 F.2d 410 (CA7),
cert.
denied, 398 U.S. 904 (1970) (§ 7203);
United States v.
Haseltine, 419 F.2d at 581;
Edwards v. United States,
375 F.2d at 867;
United States v. Schipani, 362 F.2d 825,
831 (CA2),
cert. denied, 385 U.S. 934 (1966). This Court
may be somewhat responsible for this imprecision because a similar
analysis was employed in
Spies v. United States,
317 U. S. 492,
317 U. S.
497-499 (1943). Greater clarity might well result from
an analysis that distinguishes the express elements, such as an
"attempt to evade," prescribed by § 7201, from the uniform
requirement of willfulness.
[
Footnote 9]
The Government has argued that the misdemeanor of § 7207 could
never be a lesser included offense in § 7206(1) because the
misdemeanor requires that the actor have knowledge of the falsity.
This is said to create an additional element in the misdemeanor,
not present in the felony, so the misdemeanor is not "necessarily
included" in the felony, within the meaning of Fed.Rule Crim.Proc.
31(c). Our conclusion that the word "willfully" has the same
meaning in both statutes makes it unnecessary to reach this
contention.