United States of America, Plaintiff-appellee, v. David W. Echols, Defendant-appellant.united States of America, Plaintiff-appellee, v. George R. Haviland, Defendant-appellant, 677 F.2d 498 (5th Cir. 1982)

Appellants David W. Echols and George Haviland were each convicted in a jury trial of willfully and knowingly supplying a false and fraudulent statement in a withholding exemption certificate in violation of 26 U.S.C. § 7205.¹  Echols and Haviland had each filed a W-4 Form with his employer, Brown & Root, claiming that he was exempt from any withholding of wages for income tax purposes. The form executed by each Appellant certified the following:

Under the penalties of perjury, I certify that the number of withholding allowances claimed on this certificate does not exceed the number to which I am entitled. If claiming exemption from withholding, I certify that I incurred no liability for Federal income tax for last year and I anticipate that I will incur no liability for Federal income tax for this year.

In a consolidated appeal, Appellants have contended that the district court erred in not dismissing the cases, pursuant to their pre-trial motions, on the ground, among others, that the statutes involved were ambiguous and therefore forced them to speculate, at peril of indictment, as to whether their conduct was prohibited. Specifically, they argue that the term "tax liability" is ambiguous and nowhere defined by statute. We find no merit in Appellants' contention and affirm the judgment of the district court.

"(F)undamental principles of due process ... mandate that no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited." Dunn v. United States, 442 U.S. 100, 112, 99 S. Ct. 2190, 2197, 60 L. Ed. 2d 743 (1979). A criminal statute must "give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 812, 98 L. Ed. 989 (1954). Contending that it is not unreasonable to interpret "liability" to mean "moneys owed" or "debts or pecuniary obligations", Appellants argue that it was accurate to certify on their W-4 forms that they had incurred no tax liability for 1979 and anticipated incurring none in 1980 because they both had obtained refunds in 1979 and claimed that they had already had sufficient amounts withheld in 1980 to satisfy their 1980 taxes. We agree with those courts which have concluded that "26 U.S.C. § 7205 and the accompanying explanatory statutes and regulations meet the Harriss standard." United States v. Annunziato, 643 F.2d 676, 678 (9th Cir.), cert. denied, 452 U.S. 966, 101 S. Ct. 3121, 69 L. Ed. 2d 979 (1981), citing United States v. Buttorff, 572 F.2d 619 (8th Cir.), cert. denied, 437 U.S. 906, 98 S. Ct. 3095, 57 L. Ed. 2d 1136 (1978). See also United States v. Hinderman, 625 F.2d 994 (10th Cir. 1980) (held specious defendant's argument that he did not incur a tax liability in a given year because the government owed him a refund for withholding). That the aggregate amount withheld by a taxpayer during a taxable year exceeds the amount of his liability for income tax incurred for that year does not alter the fact that liability for income tax has been incurred,²  even applying the definitions urged by Appellants.

We have considered Appellants' other claims and find them without merit and without need of discussion here.

AFFIRMED.