Before MOORE, FRIENDLY and VAN GRAAFEILAND, Circuit Judges.
On Petition for Rehearing
Per Curiam: In a petition for rehearing Leonard raised, inter alia, a claim that our discussion of the omission of income from his 1968 tax return, slip opinion at 5847-52, was incomplete in one respect. Our opinion assumed, on pp. 5949-50, that the only evidence of the alleged $73,742.33 loss of Leonard Inc., for the period February 1, 1968 through January 31, 1969, was "an unfiled tax return, signed only by the accounting firm and unexplained by any preparer ..." - in fact a copy of the unfiled return - whereas the defense had also introduced a copy of the same unfiled return signed by Leonard, and the Government had introduced the original financial books and records and cancelled checks of Leonard Inc., which allegedly "fully corroborate these losses." We called upon the Government to answer, and Leonard has replied. While the opinion should be corrected as hereafter set forth, our conclusion is not affected.
It is therefore ordered that:
(1) The second and third sentences of the first full paragraph on p. 5849 be changed to read:
The defense offered two exhibits purporting to be copies of a proposed corporate income tax return for the period February 1, 1968 to January 31, 1969, see note 2, showing a loss of $73,742.33; both copies were subscribed by the accounting firm, and one was also signed "Jackson D. Leonard."
(2) The second and third sentences on p. 5850 are stricken and the following is substituted thereofr:
The corporate tax return was never filed. Even if the copies of the proposed return were admissible at all as proof of the facts stated in the absence of testimony by the preparer, which seems doubtful, see Standard Oil Co. of California v. Moore, 251 F.2d 188, 222-23 (9 Cir. 1957), cert. denied, 356 U.S. 975 (1958), the mere existence of copies of an unfiled return carries little weight; indeed, the defense's failure to call the preparer could properly give rise to a negative inference whether Leonard Inc. had a loss. See 8 Wigmore, Evidence § 2273 (McNaughton rev. 1961). The books and records were apparently "corrected" in several respects, including the moving of a $40,000 item from an income to a loan column; the "uncorrected" sheets would support the unsigned form showing a loss of only $29,017.77 - not enough to counterbalance the $58,684.12 of undeposited Treadwell checks. If these changes could be explained, defendant had the burden of going forward and doing so by calling the preparer or some other witness. Moreover, the books were not closed on December 31, 1968, and the proposed return was for the wrong year.
(3) In all other respects the petition for rehearing by the panel is denied.