United States of America v. Anthony R. Fernicola, Appellant, 361 F.2d 864 (3d Cir. 1966)

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US Court of Appeals for the Third Circuit - 361 F.2d 864 (3d Cir. 1966) Argued May 25, 1966
Decided June 13, 1966

Michael A. Querques, Orange, N. J., and Benjamin Weiner, New Brunswick, N. J. (Querques & Isles, Orange, N. J., Benjamin Weiner, New Brunswick, N. J., Harvey Weissbard, Orange, N. J., on the brief), for appellants.

Richard A. Levin, Asst. U. S. Atty., Newark, N. J. (David M. Satz, Jr., U. S. Atty., Newark, N. J., on the brief), for appellee.

Before KALODNER and HASTIE, Circuit Judges, and WRIGHT, District Judge.


Following a jury trial, defendant was found guilty on a three-count Indictment charging him with "wilfully and knowingly attempting to evade and defeat a large part of the income tax owing by him and his wife" for the years 1955, 1956 and 1957, and "filing and causing to be filed * * * a false and fraudulent joint income tax return" for the years stated.

Since the Government was unable to obtain from the defendant books or records of his medical practice reflecting payments of fees to him, it arrived at its calculations of the defendant's taxable income for the years involved via the "net worth" method and prosecuted its case at the trial in accordance therewith. Holland v. United States, 348 U.S. 121, 75 S. Ct. 127, 99 L. Ed. 150 (1954); United States v. Pepe, 360 F.2d 1015 (3 Cir. 1966).

The hard core of the appellant's contention on this appeal is that the Government failed to satisfactorily prove a substantial understatement of income during the tax years in the critical respect that it failed to meet its burden of proof on the score of establishing an "opening net worth" or total net value of the appellant's assets at the beginning of the sequence of tax years for which a deficiency was alleged.

On review of the record we are of the opinion that the appellant's contention is without merit and that there was ample basis for the jury's verdict. Other points presented by the appellant with respect to alleged errors at the trial do not merit discussion.

For the reasons stated the judgment of sentence of the District Court will be affirmed.