UNITED STATES, Plaintiff, v. Louis A. PIT- (District Court of the United States, N. D. No. 4320 (T. D. 2874). WESTENHAVER, Judge. Now, Mr. Nicoli, upon the more deliberate examination of the indictment, and also section 3451 of the Revised Statutes, and section 251 of the Revenue Act of 1918, I do not see any reason to doubt the soundness of the rulings made by me during the trial. As I understand your main contention, it is this: The receipt issued, and introduced here in evidence, is not a document required by the provisions of the internal revenue laws or by any regulations made in pursuance thereof. Your reason for that position rests, as I understand your argument, upon the contention that section 251 of the Revenue Act of 1918 requires the collector of internal revenue to issue such a receipt only when requested. The 'language of section 251 does say, just as you urge, that the collector to whom payment is made of any tax shall upon request give to such person making such payment a full written or printed receipt, stating the amount paid and the particular account for which said payment was made. It is admitted here, or at least the evidence here shows, that the defendant received certain moneys from one Caseiano and also of Michele Favale. Just what he told the persons in question is not material, because he is not here charged with having obtained money under false representations, nor is he charged here with impersonating charged with having falsely and fraudulently executed and signed these documents, and also with aiding, advising in, and conniving at the execution thereof. The essence of the offense is the false execution and signing, the aiding and advising in or conniving at ing of a document required to be issued or the execution thereof or signing, and sign an officer of the United States. He is made by the internal revenue laws. The document, in my opinion, is one which no power' or authority to do so. As the case now stands, it seems to the court that the motion is not to be entertained. It will be overruled and you will be given the benefit of your exception. It is true that the collector will not be derelict in his duty under that section in fail-ly executed and issued by a person who has ing to issue a receipt unless a request therefor was made. It does not follow, however, that a receipt to be issued thus upon request only is not a document required to be issued by the collector. On the contrary, he is required by section 251 to issue such a receipt whenever requested. The fact that he is not required to issue the receipt in all cases, but only required to issue it in the event request is made therefor, does not in the least limit his mandatory duty to issue it when requested, and does not fail to make it a document required to be issued whenever requested. It is, therefore, plainly a document required to be issued by section 251. Now, section 3451 of the Revised Statutes makes it an offense whenever any person simulates or falsely or fraudulently executes or signs any document required by the provisions of the internal revenue law. It is also made an offense to procure the same to be falsely or fraudulently executed, or to aid in, advise, or connive at such execution thereof. Mr. Nicoli: May I inquire if the court has considered the other contention of the defendant, that he could not be guilty of the crime charged because no receipt was required because of the exemption of the parties here? The Court: Yes; I have considered that. I considered it at the time you made the suggestion, but I did not advert to it in my observations. The question of whether or not the person who paid the money was subject to the payment of an income tax, or to assessment and levy of the income tax, I regard as entirely immaterial, just as I regard the amount of money to be paid, or actually paid, to the person by the defendant, as entirely immaterial. The offense does not consist in collecting income tax from some one not subject to the payment of income 1 Table ་་ tax, but the offense consists, under the law, [Case thereupon submitted to the jury, Gentlemen of the Jury: The defendant here, Louis A. Pittaro, is charged by an indictment returned by the grand jury, in two counts, with an alleged violation of section 3451 of the Revised Statutes. or to procure the same to be falsely or fraudulently executed, or to advise, aid in, or connive at such execution thereof. Section 251 of the Revenue Act requires the collector of internal revenue to issue a receipt whenever requested. The receipt or document which is set forth in the first and second counts of this indictment are, I say to you, documents required by the provisions of the internal revenue law and by the regulations made in pursuance thereof. If you shall find, gentlemen of the jury, from the evidence beyond a reasonable doubt that the defendant here did knowingly simulate or falsely and fraudulently sign the document set forth in the first and second counts of the indictment, or either of them, and that he did so with a criminal intent, then he is guilty under this indictment and is guilty under the law as to whichever or both documents you shall so find beyond a reasonable doubt he issued. In the first count he is charged with haying on or about the 15th of March, A. D. 1919, in this district, unlawfully, knowingly, falsely, fraudulently, and feloniously simulated and executed, and procured to be falsely and fraudulently executed, and advised in, and connived at the execution of, a certain document required by the provisions of the internal revenue law, and the regulations made in pursuance thereof, to You must, of course, find him guilty bewit, section 251 of the Act of Congress ap-yond a reasonable doubt. He is not preproved February 24, 1919, and the regula-sumed to be guilty, but, on the contrary, he tions made in pursuance thereunder; that is is presumed to be innocent. Every person to say, the said document being then and there a paper purporting to be a receipt for internal revenue taxes, in the sum of $45 in currency, lawful money of the United States, which the said Louis A. Pittaro had thereto fore fraudulently received from Michele Favale in payment of revenue taxes, which said paper and document purported to be a receipt issued by Harry H. Weiss, collector of internal revenue for the Eighteenth internal revenue collection district of Ohio, and which document, paper, and receipt was then and there of the tenor following: M "Release Receipt for Income Tax. "This is to advise that Mr. Michele Favale has met his entire liability for income tax as a nonresident alien under provision of section 9, paragraph C, of the act of October 3, 1917. put on trial is presumed to be innocent until the government overcomes that presumption by evidence beyond a reasonable doubt. You will take the case, gentlemen of the jury, and consider it and come to your conclusion. You will be furnished with a blank form of verdict. There is a blank left in it after the first count, and also after the second count, in which you will write your findings. If the evidence justifies it, you may find him guilty of either or both; but, unless the evidence satisfies you beyond a reasonable doubt of his guilt, then you shall return a verdict of not guilty. [Jury thereupon retired.] Mr. Nicoli: Defendant excepts to the charge of the court generally under the stat ute. t "Harry H. Weiss, Collector." Stamped across the end thereof was the following: Stuyvesant FISH v. Roscoe IRWIN, Collector of Internal Revenue. "Harry H. Weiss, Collector of Internal Reve In the second count, the defendant is charged with the commission of a similar offense in similar language, except that the document which he thus falsely and fraudulently is said to have signed and issued was to Salvatore Caseiano. This indictment is, as I said, laid under section 3451 of the Revised Statutes, which law, so far as it is material, makes it an offense for any person to simulate or falsely or fraudulently execute or sign any bond, permit, entry or other document required by the provisions of the internal revenue laws, or any regulation made in pursuance thereof, This action was brought by Stuyvesant Fish to recover the amount of additional income tax assessed against him in October, 1917, through the disallowance of deductions from gross income claimed by Mr. Fish in his income tax reports for the years 1914, '15, '16. Questions were submitted to the jury in the following form: Was the plaintiff engaged in carrying on farming as a business in 1914, 1915 and 1916, at the Continental Village farm? Was the plaintiff engaged in carrying on farming as a business in 1914, 1915 and 1916, at the Glenclyffe farm? The Continental Village farm was located ness at Towners, they also considered the in Putnam county, and consisted of 1,300 expenses to be so gross and unreasonable acres, 900 of woodland and 400 cultivated. as not to be necessary. The court refused to The place was equipped with cow barns and set aside the verdict upon the ground that there were 40 cows there, and there was evi- both sides apparently elected to stand on dence of it being a cattle farm. There were no presenting the matter of expenses to the jury profits upon the farm, although there was rea- in such form that the jury had to decide that sonable probability of believing that some day all or none were necessary. They both must there would be. The jury found that Fish was accept the decision as rendered by the jury. carrying on the business of a farmer and the court sustained the finding. Upon the question as to the Lebanon Lake the court sustained the verdict of the jury that Chapin was merely a gentleman farmer, running the place as a forest preserve for his own pleasure. The Glenclyffe farm consisted of 480 acres, and only 70 were cultivated, and the testimony was that there never was a profit or reasonable expectancy of a profit; that the In addition to the above questions it apexpenses were far in excess of what legiti-peared that Chapin had an office in New York mately would be a farm venture; that the raising of crops was more of a hobby than a business. The jury found against the plaintiff and the court sustained the finding. where he went to receive his mail and through which he contended he conducted his business. The collector objected to a deduction of the moneys necessary to running the The court charged the jury as follows: office upon the ground that as Chapin had no "That, if the plaintiff was a person cultivat-regular business the office was unnecessary, ing and operating a farm for recreation or but was merely conducted for the personal pleasure, other than on the recognized princi- convenience of Chapin. He testified that he ples of commercial farming, then he was not a farmer." "That if the jury find that the plaintiff was the owner of a body of land devoted to agriculture, either to the raising of crops or pasture, for the purpose of selling the products as a business, then they are entitled to find a verdict in favor of plaintiff on this issue. "Business is that which occupies the time, attention and labor of men for the purpose of a livelihood or profit. It is that which is his personal concern, interest or regular occupation." Chester W. CHAPIN v. Roscoe IRWIN, lector of Internal Revenue. operated his farms through the office in New As the Fish and Chapin Cases were the (United States District Court, N. D. New York. special findings were to be sustained, and July 29, 1921.) Tried before Judge COOPER. This is a sister case to the Fish Case. The issues were practically the same. Questions were sent to the jury as follows: Was the plaintiff engaged in carrying on a business in 1914, 1915, and 1916 at Towners, Putnam county, N. Y.? Were the expenses incurred at Towners during the years 1914, 1915 and 1916 necessary expenses of carrying on business? then to render a verdict as if sitting without In re GLOYD. (United States District Court, W. D. Missouri. VAN VALKENBURGH, J. (oral opinion deSimilar question was asked as to the Leba- livered from bench). Where, on the settlenon Lake farm. The jury answered the first ment of a contest over an estate, $60,000 is question in the affirmative and the second paid to the contestant, who was the widow in the negative. The only reason for this of decedent, the contestant is not required to could have been that while they considered pay a federal estate tax on the amount rethe plaintiff engaged in carrying on a busi-ceived by her. Table |