Pacific Molasses Co. v. National Labor Relations Board Regional Office 15

577 F.2d 1172
CourtCourt of Appeals for the Fifth Circuit
DecidedAugust 8, 1978
DocketNo. 77-1886
StatusPublished
Cited by4 cases

This text of 577 F.2d 1172 (Pacific Molasses Co. v. National Labor Relations Board Regional Office 15) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pacific Molasses Co. v. National Labor Relations Board Regional Office 15, 577 F.2d 1172 (5th Cir. 1978).

Opinion

ALVIN B. RUBIN, Circuit Judge:

The conviction in this criminal prosecution for willful evasion of income taxes1 was based entirely on the government’s evidence that it had reconstructed the medical doctor-taxpayer’s income during the years [1167]*1167in question by means of the bank deposits or cash expenditures method. Because the prosecution established the amount of cash on hand at the start of the period with reasonable certainty and performed the duties incumbent on it in attempting to separate taxable income from other sources in the doctor’s gross bank deposits and cash expenditures, the question of guilt or innocence was correctly submitted to the jury by the trial court. Therefore, the judgment of conviction is affirmed.2

I.

The defendant, a general practitioner of medicine, whose office was in LaRose, Louisiana, was charged with willful evasion of income taxes for the years 1969, 1970, 1971 and 1972. Dr. Boulet was on a calendar year basis. To prove its charges, the government relied upon one of the two traditional indirect methods of proof, analysis of the taxpayer’s bank deposits and cash expenditures. Under this method, all deposits to the taxpayer’s bank and similar accounts in a single year are added together to determine the gross deposits. An effort is made to identify amounts deposited that are non-taxable, such as gifts, transfers of money between accounts, repayment of loans and cash that the taxpayer had in his possession prior to that year that was deposited in a bank during that year. This process is called “purification.” It results in a figure called net taxable bank deposits.

The government agent then adds the amount of expenditures made in cash, for example, in this case, cash the doctor received from fees, did not deposit, but gave to his wife to buy groceries. The total of this amount and net taxable bank deposits is deemed to equal gross income. This is in turn reduced by the applicable deductions and exemptions. The figure arrived at is considered to be “corrected taxable income.” It is then compared with the taxable income reported by the taxpayer on his return.3

In. asking the jury to rely on this analysis, as a basis for deciding that the taxpayer willfully underestimated his true income, the government necessarily relies on circumstantial evidence. United States v. Marshall, 5 Cir. 1977, 557 F.2d 527, 530, note 3; United States v. Slutsky, 2 Cir. 1973, 487 F.2d 832, 839, cert. denied, 1974, 416 U.S. 937, 94 S.Ct. 1937, 40 L.Ed.2d 287; United States v. Penosi, 5 Cir. 1971, 452 F.2d 217, 219-220, cert. denied, 1972, 405 U.S. 1065, 92 S.Ct. 1495, 31 L.Ed.2d 795; United States v. Doyle, 7 Cir. 1956, 234 F.2d 788, 793, cert. denied, 1956, 352 U.S. 893, 77 S.Ct. 132, 1 L.Ed.2d 87.

It is part of the government’s burden of proof to establish beyond a reasonable doubt that the expenditures and deposits come from taxable income for the very year in question. Because our income tax system is on an annual basis, failure to report income must be charged for a specific year. The statute of limitations applica[1168]*1168ble to prosecutions penalizes only failure to report income for specific years. Moreover, the indictment charges an offense for a specific year, and the proof must conform to the indictment.

There is always the possibility that the taxpayer deposited cash that he received from a non-taxable source or from income taxed in a prior year but kept on hand as cash or even from unreported income from a prior year kept on hand in cash. Such events are common human occurrences, and this possibility may of itself create reasonable doubt. Therefore, the government must establish in some fashion the amount of cash the taxpayer had on hand at the start of the period. This is part of the government’s duty to negate the possibility that bank deposits or cash expenditures in the year under investigation originated from non-taxable sources. United States v. Penosi, supra, 452 F.2d at 219-220. See United States v. Bianco, 2 Cir. 1976, 534 F.2d 501, 507, cert. denied, 1976, 429 U.S. 822, 97 S.Ct. 73, 50 L.Ed.2d 84, suggesting that, in a cash expenditure case, proof of a likely taxable source does not suffice to relieve the prosecution of its duty to negate probable sources of non-taxable income. Compare United States v. Massei, 1958, 355 U.S. 595, 78 S.Ct. 495, 2 L.Ed.2d 517 (net-worth method).

We, therefore, review the record “bearing constantly in mind the difficulties that arise when circumstantial evidence as to guilt is the chief weapon of a method that is itself only an approximation.” Holland v. United States, 1954, 348 U.S. 121, 129, 75 S.Ct. 127, 132, 99 L.Ed. 150. The government must prove a full and adequate investigation in a bank-deposits case just as it must in a net-worth case. Holland v. United States, supra. “Such investigation must establish a guarantee of essential accuracy in the circumstantial proof at trial as an element of the government’s burden of proving guilt beyond a reasonable doubt. . . . ” United States v. Slutsky, supra, 487 F.2d at 840.

II.

It is contended that, in investigating Dr. Boulet, the government failed in two particulars: (a) it did not establish with reasonable certainty the amount of cash that he had in his personal possession, as currency, at the start of each year; these funds were substantial and, when later deposited in a bank account, were erroneously considered income; (b) among his deposits were other items that were not income, such as checks he cashed for patients; failure to delete and exclude these distorted his apparent income. The case does not present the typical problem of an unknown source of income: Dr. Boulet collected his fees in cash. The source of unreported income is contended to be fees paid Dr. Boulet in cash and not reported as income that were detected because they eventually found their way into his bank account.

Because the government did not, and, perhaps, could not, analyze each deposit separately to prove that it was from a taxable source, it is the government’s dual burden to establish with reasonable certainty the cash on hand at the beginning of each of the years in question and to negate all other sources of non-taxable income during each of those years. United States v. Marshall, supra. The latter requirement may be satisfied by proof of an adequate investigation that did not disclose non-taxable sources. United States v. Penosi, supra, 452 F.2d at 219; See also United States v. Mackey, 7 Cir. 1965, 345 F.2d 499, 506, cert. denied, 1965, 382 U.S. 824, 86 S.Ct. 54, 15 L.Ed.2d 69.

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