The opinion
ALSCHULER, Circuit Judge
(dissenting in part).
Counts 1, 3, and 5 are based on what is now paragraph (a), and counts 2, 4, and 6 on paragraph (b), of section 2146, tit. 26, U. S. C. (26 USCA § 2146, pars, a and b), 1 which are identical with the previous acts in force during the first two years of the period *198 covered by the indictment. In each and all of the counts the only conduct of the defendant charged as constituting the offense is his willful failure to make a return for his income tax.
I cannot bring myself to believe that it was the intent of Congress by paragraph (a) to constitute the willful failure (1), to pay, (2) to make return, (3) to keep records, or (4) to supply information, misdemeanors subject to the prescribed penalties, and then by paragraph (b) to make the very same failures, without the remotest additional element, felonies subject to the larger penalties as therein specified.
The conduct of this defendant out of which both the misdemeanor and the alleged felony grow consists wholly in the single act or omission or failure to make his income tax returns for the several years. This failure in order to be criminal must have been “willful,” and if willful it must have been with the unlawful intent of thereby in some way defrauding the Government in its tax. Thus the willful omission and its criminal purpose would have to be the same under both paragraphs (a) and (b) if (b) applies.
It would follow that Congress passed legislation classifying as a misdemeanor the failure to file an income tax return with the purpose of thereby defrauding the Government, and at the same time classing as a felony the willful failure to file an income tax return with a purpose of intending thereby to evade or defeat the tax. As applying to the circumstances of this ease I fail to see the difference, although I assume there must be some difference if it may be concluded that Congress intended that two convictions might be hung upon this single willful omission of duty.
To my mind there is here no occasion for confusion of the meaning and application of (a) and (b) as applied to such eases, (a) provides only for the penalization of the four willful omissions therein specified; (b) applies Only to willful attempts to evade, etc. The distinction between the two paragraphs as applied to such a case, as I read them, is found in the “omissions” specified in the one and “attempts” in the other. Plainly this legislation contemplates that attempt includes something which mere failwre or omission does not. That something in my judgment is some affirmative act. Conduct which is wholly and only an omission as defined in (a) falls short of being an attempt as defined in (b). Thus while there is here present in the indictment and in the proof the willful omission of (a), there is entirely wanting the affirmative act to constitute the attempt which in my judgment is of the gist of (h). If paragraph (a) made the willful failure to make return a misdemeanor, it.is hardly conceivable that Congress intended to make the very same willful failure to make the return a felony.
Had therefore anything been charged and proved under (b) by way of an affirmative act of any kind, apart from and beyond the mere omission or failure to do the things, or one of them, specified in (a), a transgression of (b) might appear; but, in the entire absence of anything of this nature, I am satisfied that counts 2, 4, and 6 do not charge offenses under (b), and, if they did, there was no proof to sustain them.
It is the same fact with reference to (b) that it is to (a). Charging it as an attempt to evade does not serve to change it from the passive omission, classified in (a) as a misdemeanor, into a willful attempt which under (b) would constitute a felony.
The figure of speech based upon the penalization of the various “steps” of an offense to my mind is wholly without application here. The willful failure to file is just that and nothing else. It is complete in itself and has no fanciful “steps.” Besides, (b) penalizes the attempt, not a “step” leading to an attempt.
There is some reasoning in United States v. Noveck, 273 U. S. 202 , 47 S. Ct. 341, 342 , 71 L. Ed. 610 , which, while not in a parallel case, to my mind has a distinct bearing. There was under consideration the question whether the statute such as (b), penalizing an attempt to evade the tax law, was identical with another statute directed against the making of 'false returns and perjured affidavits thereto. The court said: “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. [Italics mine.] See United States v. Rachmil (D. C.) 270 F. 869, 871 , The *199 crime of attempting to defeat or evade the Revenue Law may be committed without verification of a false tax return.”
In the Rachmil Case, there referred to, there is a statement that the preparation of a fraudulent income tax return and the fraudulent signing and acknowledgment of it, while subject to penalty under other statutes, “fall short of an attempt to violate the taxing statute,” referring to the Act of Febru-. ary 24, 1919 ( 40 Stat. 1057 ), penalizing an attempt willfully to defeat and evade the income tax.
It occurs to me that the fraudulent preparation of such an affidavit, and the subscribing to and verifying it, would be a most decided “step” in an attempt willfully to evade the tax, and yet the courts there said that, while violative of other statutes, it would not violate the statute directed against the attempt willfully to evade. And so the inquiry oeeurs to me that if the preparing, signing, and swearing to a fraudulent income tax return, with the very purpose of defrauding the Government, does not violate the statute against attempts to evade, how much less is such a statute evaded where the defendant, as here, does simply nothing? If the reasoning of the courts in those eases is sound,.and neither the willful preparation of nor false swearing to the return constituted an “attempt” unless and until the return was actually presented or filed, how is this defendant chargeable with the “attempt” of paragraph (b) if he not only did not file any return, but did not even take the “steps” of preparing false returns and of perjuring himself by swearing to them? To my mind mere willful failure to make an income tax return does not transgress paragraph (b).
I believe that as to counts 2, 4, and 6 the judgment should be reversed and the cause remanded with direction to dismiss those counts; and that as to counts 1, 3, and 5 the judgment imposing fines and concurrent sentences in the Cook county, Ill., jail should be affirmed.
“(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 any 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.”