B-135312, MAR. 13, 1958
Highlights
IT APPEARS THAT THE DEFENDANT WAS INDICTED UNDER SECTION 145 (B) OF THE INTERNAL REVENUE CODE OF 1939 FOR FELONIOUSLY ATTEMPTING TO DEFEAT PAYMENT OF INCOME TAXES FOR THE YEARS 1950 AND 1951. SINCE IT SUBSEQUENTLY APPEARED THAT THE JUDGMENT WAS NOT IN CONFORMANCE WITH THE INDICTMENT. A MOTION WAS FILED BY THE UNITED STATES ON APRIL 22. REQUESTING THE COURT TO VACATE THE JUDGMENT AND PLEA ON THE GROUND THAT IT WAS WITHOUT WARRANT IN LAW AND WAS NULL AND VOID. THE MOTION WAS ARGUED ON FEBRUARY 18. WAS TAKEN UNDER ADVISEMENT BY THE COURT. THE OPINION OF OUR OFFICE IS REQUESTED AS TO THE FOLLOWING: "WE WOULD WISH TO BE ABLE TO STATE. 000 PAID IN FINES BE REFUNDED TO THE DEFENDANT. * * *" IT HAS BEEN INFORMALLY ASCERTAINED THAT THE FINES WERE PAID BY THE DEFENDANT ON APRIL 17.
B-135312, MAR. 13, 1958
TO THE ATTORNEY GENERAL:
LETTER DATED FEBRUARY 21, 1958, FROM THE ACTING ASSISTANT ATTORNEY GENERAL, CONCERNS THE JUDGMENT RENDERED IN THE CASE OF UNITED STATES V. JAMES O. MCCUE, SR., CRIMINAL NO. 9476, UNITED STATES DISTRICT COURT FOR CONNECTICUT.
IT APPEARS THAT THE DEFENDANT WAS INDICTED UNDER SECTION 145 (B) OF THE INTERNAL REVENUE CODE OF 1939 FOR FELONIOUSLY ATTEMPTING TO DEFEAT PAYMENT OF INCOME TAXES FOR THE YEARS 1950 AND 1951. ON APRIL 15, 1957, THE DEFENDANT PLEADED GUILTY ON BOTH COUNTS TO A VIOLATION OF SECTION 145 (A) OF THE CODE, A MISDEMEANOR. IN ACCORDANCE WITH THE SENTENCE, THE DEFENDANT PAID A FINE OF $10,000 ON EACH COUNT. SINCE IT SUBSEQUENTLY APPEARED THAT THE JUDGMENT WAS NOT IN CONFORMANCE WITH THE INDICTMENT, A MOTION WAS FILED BY THE UNITED STATES ON APRIL 22, 1957, REQUESTING THE COURT TO VACATE THE JUDGMENT AND PLEA ON THE GROUND THAT IT WAS WITHOUT WARRANT IN LAW AND WAS NULL AND VOID. THE MOTION WAS ARGUED ON FEBRUARY 18, 1958, AND WAS TAKEN UNDER ADVISEMENT BY THE COURT.
THE OPINION OF OUR OFFICE IS REQUESTED AS TO THE FOLLOWING:
"WE WOULD WISH TO BE ABLE TO STATE, SHOULD THE COURT INQUIRE OR CONDITION ITS DECISION THEREON, THAT THE COURT MAY INCLUDE IN AN ORDER VACATING THE JUDGMENT, A PROVISION THAT THE $20,000 PAID IN FINES BE REFUNDED TO THE DEFENDANT. * * *"
IT HAS BEEN INFORMALLY ASCERTAINED THAT THE FINES WERE PAID BY THE DEFENDANT ON APRIL 17, 1957, TO THE CLERK OF THE COURT; THAT THE AMOUNT OF THE FINES WERE POSTED ON THE CERTIFICATE OF DEPOSIT AS CORPORATION INCOME AND EXCESS PROFIT TAXES; AND THAT SUCH FINES WERE COVERED INTO THE TREASURY AS INTERNAL REVENUE COLLECTIONS. HENCE, IT WOULD SEEM THAT FINES COLLECTED FOR VIOLATIONS OF INTERNAL REVENUE LAWS ARE REGARDED AS INTERNAL REVENUE COLLECTIONS AND ARE DEPOSITED AS SUCH INTO THE TREASURY.
THE COLLECTION AND DEPOSIT OF THE AMOUNT OF THE FINES INTO THE TREASURY IN THIS CASE WAS PROPER AT THE TIME SUCH ACTION WAS TAKEN. THEREFORE, ANY ORDER OF THE COURT PURPORTING TO DIRECT THE REFUND OF THE FINES WOULD BE INEFFECTIVE AS TO SUCH MONEYS SINCE, UNDER ARTICLE I, SECTION 9, PARAGRAPH 7 OF THE CONSTITUTION, MONEYS MAY NOT BE WITHDRAWN FROM THE TREASURY EXCEPT IN CONSEQUENCE OF AN APPROPRIATION MADE BY LAW. HOWEVER, THERE IS AVAILABLE TO THE INTERNAL REVENUE SERVICE AN APPROPRIATION--- "REFUNDING INTERNAL REVENUE COLLECTIONS"-- FOR THE MAKING OF REFUNDS IN PROPER CASES.
IN THE EVENT THE JUDGMENT IS VACATED BY THE COURT, THE EFFECT THEREOF WOULD BE AS THOUGH NO JUDGMENT, IN FACT, HAD EVER BEEN ENTERED, AND ALL PROCEEDINGS TAKEN UNDER THE JUDGMENT ARE VACATED ALSO. SEE 49 C.J.S. JUDGMENTS 306. HENCE, WHETHER THE ORDER OF THE COURT VACATING THE JUDGMENT CONTAINS A PROVISIONS FOR REFUND OF THE AMOUNT OF THE FINES TO THE DEFENDANT OR WHETHER IT IS SILENT IN THAT RESPECT, ANY CLAIM BY THE DEFENDANT FOR REFUND THEN WOULD BE FOR CONSIDERATION BY THE INTERNAL REVENUE SERVICE IN THE FIRST INSTANCE. OF COURSE, IF THAT AGENCY SHOULD HAVE DOUBT AS TO THE PROPRIETY OF MAKING REFUND IT COULD SUBMIT THE MATTER HERE FOR DECISION.