United States of America v. Dr. Frank L. Benus, Appellant, 305 F.2d 821 (3d Cir. 1962)

The appellant was convicted in the district court for violation of Section 7203 of the Internal Revenue Code of 1954 (26 U.S.C. § 7203, 1958 Ed.), for failure to make income tax returns. There is no doubt that he did so fail. The case was tried without a jury to the district judge who found the defendant guilty and sentenced him in accordance with that finding.

There is no doubt that the defendant did not file his income tax returns as charged. The question is whether he is to be absolved from liability under the test provided in this Circuit by United States v. Currens, 3 Cir., 290 F.2d 751 (1961).

The trial judge knew about Currens and cited it in his opinion upon motions for new trial or discharge. The Currens case was decided before the trial of the defendant in this case and slip opinions of the decisions of this Court are circulated to the judges in advance of the appearance of the opinions in the Federal Reporter. The conclusion reached by the trial court, of course, has the same probative effect as the verdict of a jury. Notwithstanding the very able argument advanced on behalf of the appellant, we think the evidence of the case, when taken as a whole, is sufficient to support the conclusion the judge reached.

The judgment will be affirmed.