The opinion of the court was delivered by: WEINFELD
The defendants move to dismiss the first and third counts of the indictment on the ground that prosecution is time barred under the applicable statute of limitations.
The first count charges the defendant Mahler with willful tax evasion with respect to his and his wife's 1951 return.
The codefendants are charged with aiding and abetting.
The third count, which charges a conspiracy by the defendant and his two codefendants to violate 26 U.S.C. § 145(b), alleges, as one of the overt acts, the filing of the 1951 return, the subject of the first count.
The return in question was due no later than March 15, 1952, but an extension to file had been granted to September 15, 1952. According to the defendants, the return was executed and mailed to the District Director on September 15, 1952. The Government contends that the return was not received at the District Director's office until September 17, 1952. The indictment was returned by the Grand Jury on September 16, 1958.
The defendants' motion that prosecution is time barred rests essentially upon the claim that the date of mailing of an executed false return is the date of commission of the crime charged and that the limitation period commences on that day.
Since both the date of mailing of the return and the date of its receipt by the Internal Revenue Service were in dispute, the Court took testimony on this issue. The Court finds that the return was mailed to the District Director on September 15, 1952. It also finds that it was received in the office of the District Director on September 16, 1952.
Against the foregoing factual determination, we consider the two issues presented by the defendants' motion: (1) whether the date of mailing of the return or the date of its receipt by the District Director
governs -- more precisely, whether the offense charged was committed on September 15, 1952, when the return was mailed, or on September 16, 1952, when it was actually received by the District Director; and (2) whether the date of the commission of the offense is to be considered a part of the limitation period.
Section 53 of the Internal Revenue Code of 1939 provides:
'Time and place for filing returns.
(1) General rule. Returns made on the basis of the calendar year shall be made on or before the fifteenth day of March following the close of the calendar year.
(1) Individuals. Returns * * * shall be made to the collector for the district in which is located the legal residence * * * of the person making the return * * *.'
The defendants emphasize that the above provision imposes no obligation upon the taxpayer to 'file' a return. They urge that the sole statutory requirement is that a return be 'made' and, from this premise, they reason that when executed by the taxpayer and mailed off, the return is 'made' to the Director of Internal Revenue, and that 'the offense is committed when the ...