# Milton H. Olender v. United States

> Court of Appeals for the Ninth Circuit · November 8, 1956 · 237 F.2d 859

URL: https://www.frixlaw.com/law-library/cases/9445358

## Case

- **Full name:** Milton H. OLENDER, Appellant, v. UNITED STATES of America, Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** November 8, 1956
- **Citations:** 237 F.2d 859
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Healy, Chambers, Barnes
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9445358

## Opinion text

On Petition for Rehearing.
PER CURIAM.
The Petition For Rehearing consists primarily of an endeavor to re-discuss and re-weigh the sufficiency of the evidence. On this point, our view remains unaltered.
The sole issue of substance raised by the petition for rehearing relates to an alleged misapplication of the Calderon case, to the instant facts. Appellant asserts that we have cited and relied upon Calderon .as authority for the proposition that there need not be evidence of a tax deficiency for each of the years in question, 1945 and 1946. The precise language of the case as we quoted it justifies that position.
Obviously, Calderon does not stand for that proposition, nor was it referred to for such purpose. In order to correct appellant’s misconception as to the nature of our reliance on the Calderon case, we now clarify our reference thereto.
*867 The quotation of the Calderon case should read as follows:
“But one problem remains. The $17,-000 hoard of cash could have absorbed the computed income deficiency for one or more of the prosecution years, and respondent was convicted on all four counts. It might be argued that independent evidence showing a $30,000 deficiency is not enough — that there must be evidence that this sum resulted in a deficiency for each of the years here in issue. There is no merit in this contention. In the first place, this evidence is merely corroborating respondent’s cash-on-hand admissions and need not comply with the niceties of the annual accounting concept. While the evidence as a whole must show a deficiency for each of the prosecution years, the corroborative evidence suffices if it shows a substantial deficiency for the over-all prosecution period.” [ 348 U.S. 160 , 75 S.Ct. 190 .]
We are aware of, and we are bound by the Supreme Court’s statement that “the evidence as a whole must show a deficiency for each of the prosecution years”.
We affirm that the government must establish some deficiency for each of the years. Otherwise, there could be no violation. However, it seems equally plain that it is not incumbent upon the government to prove the amount of the deficiency with mathematical exactitude for each year in a prosecution involving consecutive years. A contrary rule would enable the guilty to say, “Yes, 1 am guilty, but since you cannot allocate the deficiencies to each particular year with exactness, although there was some deficiency in each year, I must go free.” We reject the idea that surreptitious dealings which inhibit the prosecution’s ability to make a precise allocation for each year can furnish a cloak of immunity to tax evaders. We do not feel that Justice Clark’s words were designed to erect an artificial barrier to tax enforcement. The evidence clearly supports the jury’s finding of a tax deficiency in both 1945 and 1946.
The Petition For Rehearing is denied.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9445358. Public record. Not legal advice.