(after stating the facts as above). The 370 pages of brief and argument for plaintiff in error present a plurality of propositions, whereof we need here consider but one — the validity of the count on which the judgment rests. The count is predicated on that part of section 253 of the Revenue Act of 1918 (Comp. St. Ann. Supp. 1919, § 6336%v) which reads:
“Any individual * * * who willfully attempts in any manner to defeat or evade the tax imposed by this title, shall be guilty of a misdemeanor and shall he fined not more than $10,000, or imprisoned for not more than one year, or both, together with the costs of prosecution.”
Those required to make return of income tax are specified in section 223 of the act (Comp. St. Ann. Supp. 1919, § 6336%kk) as follows:
“That every individual having a net income for the taxable year of $1,000 or over if single or if married and not living with husband or wife, or of $2,000 or over if married and living with husband or wife, shall make under oath a return stating specifically the items of his gross income and the deductions and credits allowed by this title. If a husband and wife living together have an aggregate net income of $2,000 or over, each shall make such a return unless the income of each is included in a single joint return.”
If the net income in a given ease is not over the sum fixed by the statute, it is wholly immaterial what the gross income was during the year. For example, a married person having gross income of $1,000,000 and lawful deductions which would bring down his net income for-the year to $2,000 or under would not be required to make any return at all; whereas, if his net income was $2,001, he would fall within the class required to make a return, and would he obliged to report his $1,000,000 gross income, with the deductions. It is at least interest*940ing to note that by the Revenue Act of 1921 (42 Stat. 227) this has been changed, so that all persons with gross income of over $5,000 must make return, regardless of whatever, if any, the net income may be.
It would follow that a valid indictment under the quoted sections must in some way definitely bring the defendant within the terms of the statute, unless, as the government contends, the general rule against requiring indictments to negative statutory exceptions to liability under it has application here. The statute in question does not declare a general liability and then make certain exceptions to its operation, but it prescribes and defines a limited class of persons to whom it has application. A valid indictment under such a statute must so describe the person charged that, from the facts alleged, he comes within it. Johnson v. United States (C. C. A.) 294 F. 753; Brenner v. United States (C. C. A.) 287 F. 636; 31 C. J. p. 713, § 265.
Coneededly there are no direct allegations' which bring the defendant within the statutory class, but it is contended for the government that the count has allegations wherefrom it is necessarily to be inferred that the defendant is within the class, first, from the statement therein that under the Revenue Act the defendant was required to make a return for income taxes. It is sufficient ordinarily to charge an offense in the language of the statute, and it would here have been quite sufficient to bring the defendant within the statutory class to have employed the statutory words creating it. The facts should be alleged wherefrom his inclusion within the class would follow. This cannot be done by merely stating that the defendant is a person who is required to do the things the statute enjoins. United States v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588; Johnson v. United States, supra.
Second, the allegation that the defendant did in fact file a return. This is by no means the equivalent to an allegation that he comes within the class of persons upon whom it was obligatory to do so. Through ignorance, mistake, possibly out of abundance of caution, or other motive, he might have made a return, when the law did not require him to do so, and surely he would not thereby subject himself to a liability which otherwise the law did not impose.
Third, the allegation that the return showed the gross income to be less by $53,-125.96 than it was, and that, if the return made would have been accepted as true, “the United States would have been deprived of income tax upon that sum.” This allegation of potential loss of income tax neutralizes itself, since under the law no tax whatever could be assessed upon gross income. There can be no presumption that the gross income and the net income from a business would be the same. Experience is quite to the contrary. A gross income from a business, not reducible by lawful deductions, is scarcely conceivable. Too often the lawful deductions equal or exceed the gross, leaving no net income whatever to be taxed.
We cannot regard any or all of these allegations or statements of the indictment as setting forth facts which bring the defendant within the class of persons required to make return. The want of any such allegation, not only fails to bring the defendant within the statutory class, but fails to show how there could have been a defeat or evasion of income taxes due to the United States, since under the law its income tax is predicable only upon the net income, and in no instance upon gross income, while the allegations of the count are as to gross income, and in no respect of net income, which alone would be taxable. Without net income there was no income tax “to defeat or evade.”
The demurrer interposed to the indictment should have been sustained. The judgment is reversed, and the cause remanded, with direction to sustain the demurrer to the count.
EVANS, Circuit Judge, dissents.