Achilli v. United States/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

I do not see how we can say that Congress withdrew the income tax from the reach of § 3616(a). In the 1939 Internal Revenue Code that section was part of Subchapter B, 'Determination of Tax Liability,' which was a part of chapter 34, 'Information and Returns,' which in turn was part of Subtitle D, 'GENERAL ADMINISTRATIVE PROVISIONS.' SECTIOn 61 mADe applicable tO the income tax provisions 'All administrative special, or stamp provisions of law, including the law relating to the assessment of taxes, so far as applicable * *  * .' These administrative provisions include the chapter and subtitle of which § 3616(a) is a part. And by its terms § 3616(a) applies to 'any' return. Plainly then, Congress in 1939 considered § 3616(a) an instrument for enforcing the income tax.

It takes mental gymnastics to bring this crime out from under § 3616(a) and to place it exclusively under § 145(b). I would not make the penal consequences of an Act turn on a construction so tenuous. I rebel against it, especially because the construction now adopted sweeps the ground out from under dozens of criminal convictions which the Government has obtained under § 3616(a). Between October 1952 and March 1957 (when the Government first suggested to this Court that § 3616(a) was inapplicable to the income tax) it invoked § 3616(a) in 175 cases of alleged income tax evasion. It chose § 3616(a), rather than § 145(b), where it appeared that the crime was a relatively minor one. Of these 175 cases, 38 remain undisposed of. Of the 133 that went to trial, 117 resulted in pleas of guilty and 9 in pleas of nolo contendere. Seven defendants went to trial, of whom 5 were acquitted and 2 convicted. Of the 128 convicted persons, 26 were sentenced to imprisonment, the rest being fined or given probation or suspended sentences. Seven of the convicted persons who were sentenced are still incarcerated.

Now it appears that the Government dealt unlawfully with this group of citizens. Those who were convicted on indictments might have to be resentenced. Those who were convicted on informations must be released.

It is no answer to say that the result is 'a break' for these defendants. From the statistics submitted to us by the Government it appears that many of these cases were so minor it is difficult to imagine a ground jury returning indictments on them.

I would adhere to the administrative construction that § 3616(a) applied to the income tax. Congress apparently was of that view. For when it came to the Internal Revenue Code of 1954, 26 U.S.C.A., it re-enacted § 3616(a) as § 7207, eliminating the words 'with intent to defeat or evade' which had caused the overlap with § 145(b). Congress acted, of course, prospectively.

The fact that Congress acted in 1954 to remove the ambiguity with which we deal today indicates that what we do is not within the judicial competence.