tax whatever in effect. Section 3616(a) consequently could not then have been intended to apply to any income tax.
(3) In addition, when, after the enactment of Amendment XVI, Congress enacted the forerunner of the present income tax act, it adopted criminal provisions specifically applying to income taxes in Section (F), 38 Stat. 171. These provisions shortly thereafter, in 40 Stat. 1085, were given by Congress substantially the exact wording of the present sections of the income tax, Section 145(a) and (b). These income tax sections have been substantially re-enacted from then on, to the present day. So have the provisions of Section 3616(a), with its above forerunner, R.S. 3179. Since Section 145(b) did clearly apply to income taxes, and Section 3616(a) and its forerunner in 1877 and thereafter could not possibly have applied to income taxes, it is inconceivable that the re-enactment of Section 3616(a) could have been intended to apply to income taxes, when same were already fully covered by Section 145(b).
(4) In addition, as above noted, these two statutes -- Sections 3616(a) and 145(b), both cover the same acts, the former as a misdemeanor, the latter as a felony. It is equally inconceivable that the Congress could have intended to make the same act both a misdemeanor and a felony. See Spies v. United States, 1943, 317 U.S. 492, 63 S. Ct. 364, 87 L. Ed. 418. The only reasonable explanation of the situation is that shown above, both by the history of these two statutes and their position in the Congressional enactments, i.e., that Section 3616(a) does not apply to income taxes.
It need only be added that none of the cases cited to the Court by either defense counsel or the United States Attorney, are to the contrary. Several of them did not even consider the point here in question. On the other hand, our highest court, in Spies v. United States, supra, has expressly held that Section 145(b) does apply to a situation such as the present. In addition, Dillon v. United States, 8 Cir., 1955, 218 F.2d 97, has held that Section 3616(a) cannot apply thereto. The discussion of wilfulness, in Dillon, as to which question has been raised, is immaterial to the point here in question.
Thus, in the present case, the defendant's guilty plea will be reopened, and a plea of not guilty entered. Thereupon the Government is at liberty to find a new indictment, or information on defendant's waiver, under Section 145(b), for defendant's plea thereto, in substitution for the above action taken by him under Section 3616(a). If and when, sentence is reached under the new charge, of course any ameliorating facts, apparently motivating defense counsel now, can be given full effect by the Court under its liberal sentencing discretion under Section 145(b).
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