As long ago as 1926, it was the Government's position that the predecessor of § 145(b) effectively repealed § 3616(a)'s applicability to income tax evasion. See brief for the United States pp. 16-19, in United States v. Noveck, 273 U. S. 202. To be sure, during the last five years, the Government prosecuted a small number of minor offenses, we are told less than seven per cent of the criminal income tax evasion cases involving the filing of false returns, as misdemeanors under § 3616(a). More recently, a series of cases brought the relation of § 145(b) to § 3616(a) into focus, and called for an interpretative analysis of the history of these sections in order to ascertain their respective functions. And so now, for the first time, has the Government made a detailed survey of the problem of alleged overlapping between § 3616(a) and § 145(b).
Section 3616(a) goes back to the Act of 1798, 1 Stat. 580, 586, when excise taxes and customs duties were the main sources of federal revenue. Being general in scope, this section, as successively reenacted, was applicable to the first federal taxes on income from 1861 to 1871, and again in 1894; there were no separate provisions for punishing income tax evasions. See, e.g., the Act of 1861, 12 Stat. 292, 309; the Act of 1894, 28 Stat. 509, 553.
A different story begins with the income tax legislation that followed the passage of the Sixteenth Amendment. Section II of the Revenue Act of 1913, 38 Stat. 114, 166, contained its own criminal sanctions. Section II(F) proscribed the making of a false return with intent to evade the income tax, an act that would otherwise have been punishable under what was then § 3179 of the Revised Statutes of 1874, the immediate predecessor of § 3616(a). The offense would have been a misdemeanor under either statute. But § II(F) provided a maximum fine of $2,000, while § 3179 only permitted a fine of up to $1,000. It seems clear that § II(F) displaced § 3179. Such implied repeal, pro tanto, is further demonstrated by the fact that §§ 3167, 3172, 3173 and 3176 of the Revised Statutes, related provisions in the enforcement of the revenue laws, were specifically incorporated, as modified, into § II, but § 3179 was not. Nor was it incorporated by reference; § II(L) made applicable only those administrative and general tax provisions "not inconsistent with the provisions of this section," and § 3179 was obviously inconsistent with § II(F).
The Revenue Act of 1916, 39 Stat. 756, 775, and the Act of 1917, 40 Stat. 300, 325, offer further evidence that Congress withdrew the income tax from the reach of the general provisions of § 3179. Both of those Acts imposed income taxes, proscribed the making of false returns as a misdemeanor, and punished that offense more severely
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