273 U.S. 202 - United States v. Noveck

Noveck was indicted in two counts under section 125 of the Criminal Code (Comp. St. § 10295), in the federal court for southern New York, for perjury in making returns for the purpose of taxation.1 To the first count he pleaded the statute of limitations. The District Court sustained the plea, and its judgment was affirmed in United States v. Noveck, 271 U. S. 201, 46 S. Ct. 476, 70 L. Ed. 904. To the second count he filed both a demurrer and a motion to quash, on the ground that it did not state facts sufficient to constitute an offense. The objection was overruled. Thereupon Noveck pleaded guilty. He was sentenced to a fine of $2,000 and to imprisonment for four months. He paid the fine and was taken into custody.

While Noveck was still in prison the United States Circuit Court of Appeals for the Second Circuit held, in Steinberg v. United States, an unreported opinion, that section 125 of the Criminal Code had been repealed, so far as concerns perjury on tax returns, by section 253 of the Revenue Act of 1921, 42 Stat. 227, 268, c. 136 (Comp. St. § 6336 1/8 v), which makes it an offense willfully to attempt in any manner to defeat or evade a tax.2 The term of the District Court at which Noveck was sentenced not having ended, he moved immediately to vacate the sentence. The motion was granted, a motion in arrest of judgment was sustained, and the court allowed this writ of error under the Criminal Appeals Act. Act March 2, 1907, c. 2564, 34 Stat. 1246 (Comp. St. § 1704). After the docketing of the case in this court, the Circuit Court of Appeals withdrew its unreported opinion in the Steinberg Case and, reversing itself, held that the Revenue Act of 1921 did not repeal section 125 of the Criminal Code as applied to perjury on tax returns. 14 F.(2d) 564. The government, deeming it impossible to reinstate Noveck's sentence by any proceeding in the District Court, continues to prosecute the writ of error. Compare Keyser v. Farr, 105 U. S. 265, 26 L. Ed. 1025.

The jurisdiction of this court is conceded. The sole question requiring discussion is whether section 253 of the Revenue Act of 1918 (re-enacted as section 253 of the Revenue Act of 1921) repeals, as to false tax returns, section 125 of the Criminal Code. There was confessedly no express repeal; and it is clear that the two sections are not inconsistent. Noveck's contention is that a repeal was effected, because Congress manifested the intention of supplanting the provision of the Criminal Code, in so far as it relates to perjury in income tax returns, by embodying in the Revenue Act all provisions dealing with the various methods of defeating or evading taxes therein imposed. The argument is that section 253 of the Revenue Act includes within its condemnation any one 'who willfully attempts in any manner to defeat or evade the tax imposed by this title'; that perjury to an income tax return is one manner or method of defeating or evading the tax; and that, since all methods are made punishable under section 253, Congress must have intended that perjury in making false returns should no longer be punishable under section 125.

The conclusion stated does not follow. The offenses defined in the two statutes are not identical. They are entirely distinct in point of law, even when they arise out of the same transaction or act. Each involves an element not found in the other. Compare Morgan v. Devine, 237 U. S. 632, 35 S. Ct. 712, 59 L. Ed. 1153. The crime of perjury is complete when the oath is taken with the necessary intent, although the false affidavit is never used. Noah v. United States (C. C. A.) 128 F. 270; Berry v. United States (C. C. A.) 259 F. 203. Compare United States v. Rhodes (C. C.) 30 F. 431, 433. The making of a false affidavit, without presentation thereof, does not constitute an attempt to evade the tax law. See United States v. Rachmil (D. C.) 270 F. 869, 871. The crime of attempting to defeat or evade the Revenue Law may be committed without verification of a false tax return. Emmich v. United States (C. C. A.) 298 F. 5, 10. Congress, having power to make both the false swearing and the use of the false affidavit punishable (Albercht v. United States, 273 U. S. 1, 48 S. Ct. 250, 71 L. Ed. —, No. 9, decided January 3, 1927), did so. Compare United States v. Rabinowich, 238 U. S. 78, 35 S. Ct. 682, 59 L. Ed. 1211; Kennedy v. United States, 265 U. S. 344, 44 S. Ct. 501, 68 L. Ed. 1045. The fact that perjury is a felony, while filing a false return is only a misdemeanor, presented no obstacle. Compare United States v. Lawrence, 26 Fed. Cas. 878 (No. 15,272). There is nothing in the history of the revenue legislation which should lead us to a different conclusion. Our decision is in accord with the view taken by those circuit courts of appeals which have dealt with the question. Levin v. United States (C. C. A.) 5 F.(2d) 598, 600; Steinberg v. United States (C. C. A.) 14 F.(2d) 564.

Reversed.