(dissenting).
The court holds that the district judge erred in instructing the jury that as a matter of law the assessments made against William B. England, Sr., on February 4, 1955, were valid obligations of the defendant. I disagree that the instruction was erroneous.
Defendants were charged with attempted evasion of taxes owed by England Senior and assessed against him on February 4, 1955. In order to prove that he was *437liable for income taxes totaling $27,031.-97, covering the years 1944, 1945, and 1946, the Government introduced waivers of restrictions on the assessments signed by the defendant pursuant to section 6213(d) of the Internal Revenue Code of 1954. The assessments themselves were introduced as part of the Government’s proof. Defendants objected on the grounds that the assessments were invalid because they were made in February 1955, which was beyond the three-year statute of limitations prescribed by section 6501 of the Code. To prove that the assessments were timely and permitted by the section 6501(c) (1) exception to the statute of limitations, the Government introduced a record of England Senior’s plea of guilty in the year 1952 to charges of willfully attempting to evade income taxes for the years 1945 and 1946.
■ Defendants made no effort to rebut the Government’s proof that the assessments represented unpaid income taxes for the years 1944, 1945, and 1946. Moreover, they did not dispute the Government’s evidence that England Senior had filed fraudulent tax returns for those years, thus permitting the assessments to be made in 1955 under the provisions of section 6501(c) (1). In these circumstances, there was no issue of fact which allowed the jury to decide whether the amounts assessed were valid obligations of England Senior during the time covered by the indictment. Defendants did not deny that these taxes were owed by England Senior. They disputed only the assertion that the taxes were a continuing obligation and contended that the assessments were barred by the statute of limitations. That was a legal question for decision by the trial court, not by the jury.
Whether a person owes federal taxes is initially a matter for determination by the Commissioner of Internal Revenue as delegate of the Secretary of Treasury.1 That determination is made final by an assessment. “Once the tax is assessed, the taxpayer will owe the sovereign the amount when the date fixed by law for payment arrives. * * * The assessment is given the force of a judgment, and if the amount assessed is not paid when due, administrative officials may seize the debtor’s property to satisfy the debt.” Bull v. United States, 295 U.S. 247, 259, 55 S.Ct. 695, 699, 79 L.Ed. 1421 (1935). The taxpayer may contest the Commissioner’s determination by filing a petition for redetermination in the Tax Court or he may pay the tax and bring suit for a refund in a district court.2 These are the statutory methods of relief from an illegal assessment; if they are not invoked, the assessment stands as a final judgment. For these reasons I believe that this court is permitting an unauthorized review by a jury in a criminal case of the validity of a tax assessment.
Analogous situations were presented in cases arising under the Selective Training and Service Act of 1940. In Cox v. United States, 332 U.S. 442, 453, 68 S. Ct. 115, 120, 92 L.Ed. 59 (1947), the Supreme Court said; “The concept of a ju-r ry passing independently on an issue previously determined by an administrative body or reviewing the action of an administrative body is contrary to settled federal administrative practice; the constitutional right to jury trial does not include the right to have a jury pass on the validity of an administrative order.” Accord, Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946); Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305 (1944).
The decision in Cox was followed by this court in United States v. Heikkinen, 240 F.2d 94 (7th Cir. 1957). There we held that although the defendant was entitled to attack the validity of a deportation order by having the issue submitted to the trial judge and the reviewing courts, he had no constitutional right to have the jury pass upon the validity of the order.
Moreover, in a case dealing with a criminal violation of the Emergency Price *438Control Act of 1942, the Supreme Court held that the defendant had no constitutional right to have the validity of a price regulation submitted to the jury when he had adequate means to test the validity of the regulation in the Emergency Court of Appeals. Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944).
The majority does not consider the other assigned errors. For that reason I shall not discuss them except to say that I believe they are without merit. I would affirm.
ADDENDUM
GRANT, District Judge.Subsequent to the entry of the Order of this Court reversing the judgments and sentences of the District Court below, the United States filed a Petition for Rehearing and “Suggestion that Rehearing Be Before the Court En Banc.” This petition, denied by this Panel and by the Court en banc, again raised the argument that the Commissioner’s assessment of a tax deficiency is final, unless the taxpayer avails himself of the remedies provided by statute, for the reason that the decisions of an administrative body may not be reviewed by a jury in a criminal case, but may be reviewed by the trial judge only to determine whether they are supported by substantial evidence. Because this was the position adopted by Judge Swygert in his dissenting opinion herein, and because of the importance of the question with respect to the relation of administrative law and the Sixth Amendment, we feel compelled to provide a brief statement of our views on the issue raised again by the Government’s Petition for Rehearing. As such, the statement that follows should be considered, and is, a part of the majority opinion in this case.
The Petition for Rehearing does not question the point made in the majority opinion that “a valid assessment, and proof thereof, was an essential element of the case against appellants.” For this proposition, we relied on the case of Banks v. United States, 204 F.2d 666 (8th Cir. 1953), and the statement of the Government attorney at the trial in this cause to the effect that, “We have to show there was an assessment, a legal assessment.” That the existence of an outstanding tax liability is an essential element of a crime under Section 7201 of the Internal Revenue Code of 1954 was recently reiterated in Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965). There, the Supreme Court said:
“As has been held by this Court, the elements of § 7201 are willfulness ; the existence of a tax deficient cy, and an affirmative act constituting an evasion or attempted evasion of the tax. (Citations omitted.)” (Emphasis added.)
The brunt of the Court’s opinion in this cause is that, “in the criminal prosecution of one charged with the commission of a felony, the defendant has an absolute right to a jury determination upon all essential elements of the offense.” The Government’s argument on its Petition for Rehearing is that an exception is to be carved out of this principle in the instance where an element of the crime charged has previously been determined by an administrative agency. The contention raised, therefore, is not that a valid assessment is not an essential element of a Section 7201 offense, but that a determination upon the various elements of such an offense is “split” between the appropriate governmental agency and the trial jury. ,
The Government’s contention apparently is to prevail even in the case in which, as here, the agency’s determination involves a “vital and controversial” question of fact. The issue of the assessment’s validity in this case turned on the antecedent question of fraud and the impact of fraud on the statute of limitations, assuredly a question of fact. That the issue of fraud is one of fact and not one of law under such circumstances was the decision of this Court in Jaeger Motor Car Company v. Commissioner, *439284 F.2d 127 (7th Cir. 1960), even though that civil ease applied the “substantial evidence” test and held itself bound by a previous determination of the Tax Court. There, the Court said:
“Where a return is false and fraudulent, with intent to evade tax, assessment and collection of deficiency may be made at any time. Internal Revenue Code of 1939, § 276(a), 26 U.S.C.A. § 276(a). Fraud is a question of fact.”
The apparent constitutional defect in such a procedure of “splitting” the elements of a crime, argues the Government, is corrected or remedied by the fact that attack upon the agency’s determination can be made through the procedure made available to that end in the particular legislation involved. As Judge Swygert pointed out in his dissent in this case, “the statutory methods of relief from an illegal assessment” are to file “a petition for redetermination in the Tax Court * * * or pay the tax and bring suit for a refund in a district court.”
However, what has not been pointed out is the fact that the administrative review of the validity of the assessment was not available to the co-defendant, William B. England, Jr. England Junior had no such “statutory method of relief” from an illegal assessment for the reason that he was not party to the tax returns filed for the years charged in the indictment. It is to be remembered that the indictment in this case charged both father and son with an attempt to evade and defeat payment of income taxes owed by the father (and the mother for the year 1944 when a joint return was filed), not those owed by the son. Furthermore, England Junior was not named in the 1952 indictment charging ¡¡.the father with filing a false and fraudulent income tax return for the years 1945 and 1946. England Junior entered no plea to this earlier indictment; there was no finding of guilty as to him; he paid no fine; he executed no waivers; and none of the evidence of such acts of the father was ever admitted against him during the trial in this ease.
The conclusion is inescapable that no assessment was ever made as to England Junior. The question then becomes: What happens to England Junior’s right to have the issue of a valid assessment— an essential element of the crime with which he was charged — reviewed and determined as against him? The importance of this question is emphasized by the fact that the validity of the assessment rests solely on an antecedent finding of fraud — the fraud, not of England Junior, but of his father, for which England Junior could be held responsible only if he had knowledge thereof. See United States v. England, 229 F.Supp. 493, 499 (E.D.Ill. 1964).
Moreover, such statutory methods of relief from the determination of the administrative agency involved have not succeeded in satisfying all who have faced the question of the constitutionality of “splitting the elements” of a criminal offense between administrative agency and trial jury. Justice Jackson (joined by Justice Frankfurter) expressed eloquent disapproval of such technique in a dissenting opinion in United States v. Spector, 343 U.S. 169, 177-180, 72 S.Ct. 591, 96 L.Ed. 863 (1952). Justices Jackson and Frankfurter saw what they felt to be an inherent constitutional defect in the statutory scheme involving administrative determinations of liability to deportation. Having dispensed with important constitutional safeguards in obtaining an administrative adjudication that the alien is guilty of conduct making him deportable on the ground that it is only a civil proceeding, the Government sought to turn around and use the result as a conclusive determination of that fact in a criminal proceeding. This, they asserted, the Government cannot do. Justice Jackson’s opinion declares:
“The subtlety of the present Act (Immigration Act of 1917, Section 20(c) as amended, 8 U.S.C. § 156 (c)) consists of severing the issue of unlawful presence for administra*440tive determination which then becomes conclusive upon the criminal trial court. We must not forget that while the alien is not constitutionally protected against deportation by administrative process he stands on an equal constitutional footing with the citizen when he is charged with crime. If Congress can subdivide a charge against an alien and avoid jury trial by submitting the vital and controversial part of it to administrative decision, it can do so in the prosecution of a citizen. And if vital elements of a crime can be established in the manner here attempted, the way would be open to effective subversion of what we have thought to be one of the most effective constitutional safeguards of all men’s freedom.” (343 U.S. at 177— 178, 72 S.Ct. at 596.) (Emphasis added.) 1
The obvious constitutional repugnance to the situation wherein a criminally accused may be subject to conviction for violating an invalid administrative order has led the Supreme Court to hold that such an order is not entirely immune from review in the criminal proceeding. In Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946), the Court felt that to hold that the validity of the administrative order for whose violation petitioner had been indicted could not be reviewed in the criminal proceeding would be to deny him the opportunity to prove the nonexistence of an essential element of the crime with which he was charged. The Court’s opinion asserted:
“ * * *' We cannot readily infer that Congress departed so far from the traditional concepts of a fair trial * * * as to provide that a citizen of this country should go to jail for not obeying an unlawful order of an administrative agency. We are loath to believe that Congress reduced criminal trials under the Act to proceedings so barren of the customary safeguards which the law has designed for the protection of the accused.” (327 U.S. at 122, 66 S.Ct. at 427.)
Granting the foregoing, we have still to reach the question as to the scope of the review which is to be afforded in the criminal proceeding. Within a year after Estep, the Supreme Court faced this issue in the case of Cox v. United States, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59 (1947). The Court held, in effect, that the scope of review is no broader — if anything, it is even narrower — than that available in the normal proceeding for direct review of administrative action. The Court rejected petitioner’s claim that the validity of the administrative decision was to be submitted to the jury to meet Sixth Amendment standards. The language of the Cox opinion to this effect has already been quoted by Judge Swygert in his dissent herein.
The position of the Court in Cox has often been defended on the ground that the validity of the administrative action is a question of law, and that the Sixth Amendment rights of an accused are fully protected by a submission of such issue to the trial judge, rather than the jury, for determination. Of course, the line has always been considered fine between questions of law and questions of fact. We believe in the cases before us that the line was breached and the question was factual in nature. The validity of the assessment could be proved only by a showing of fraud — a factual question and a matter collateral to and apart from the record upon which the assessment itself was based.
There is another reason for holding . that the validity of the assessment should have been submitted to the jury for review and determination. That reason arises out of the fact that the 1952 indictment to which England Senior plead*441ed guilty and which the Government offered as proof of the tolling of the statute of limitations on the assessment charged an income tax violation for the years 1945 and 1946. The indictment in this case, on the other hand, involved violations for the years 1944, 1945, and 1946. In other words, with respect to the number of years involved, the indictment in this case was more inclusive than that in the prior prosecution. Therefore, in order to find the assessment valid for the year 1944, an inference would have to be drawn from the evidence admitted on the issue of the prior fraud, all of which concerned the years 1945 and 1946. Certainly, the drawing of such an inference is properly one for the trial jury, not the trial court.
The Government also relies heavily on the language of Cox as adopted in United States v. Heikkinen, 240 F.2d 94 (7th Cir. 1957). There, this Court said:
“ * * * jn essence, defendant urges that the issue of the validity of the order of deportation must be tried in the criminal .trial by the jury. Defendant finds support for this contention in Mr. Justice Jackson’s dissenting opinion in United States v. Spector * * *. However, tlie concept of a jury passing independently on an issue previously determined by an administrative body or reviewing the action of an administrative body is contrary to settled federal practice.” (240 F.2d at 99.)
It is here urged that such a summary dismissal of the view of Justice Jackson in his dissent in Spector was not warranted by a close analysis of the decisions of the Supreme Court with respect to this issue. This is so for two reasons: First, Justice Jackson’s dissent was not offset by a contrary holding by the majority in the Spector case. The opinion of the Court, by Justice Douglas, was that the issue of “splitting the elements” of the criminal offense between administrative agency and trial court or jury was not reached inasmuch as it was “neither raised by the appellee nor briefed nor argued here.” 343 U.S. at 172, 72 S.Ct. at 593. Far from being “settled federal practice”, the Court indicated explicitly that it considered the question open:
“It will be time to consider whether the validity of the order of deportation may be tried in the criminal trial either by the court or by the jury, cf. Yakus v. United States, 321 U.S. 414 [64 S.Ct. 660, 88 L.Ed. 834] ; Cox v. United States, 332 U. S. 442 [68 S.Ct. 115, 92 L.Ed. 59] when and if the appellee seeks to have it tried. That question is not foreclosed by this opinion. We reserve decision on it.” (343 U.S. at 172-173, 72 S.Ct. at 594)
Secondly, the dissent in Spector indicated a shift in the position of the several Justices who had previously considered the issue. See, 1 Davis: Administrative Law 595-597 (§ 8.16). For example, in the 1943 case of Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1943), cited in Heikkinen and by the Government here, Justices Jackson and Frankfurter voted with the majority. In the Cox case, Justice Jackson was again with the majority and Justice Frankfurter concurred in the result, but wrote no opinion. Thus, it is clear that by the time the Supreme Court faced the issue in Spector, Justices Jackson and Frankfurter had completely changed their views, feeling at that later date that review of an administrative order should be by the jury. Furthermore, Justice Black dissented in Spector for another reason (that the statute in question was void for vagueness) and did not reach the issue discussed by Justice Jackson, but in a footnote Justice Black, did state that he had “not yet seen a satisfactory reason for rejecting his (Justice Jackson’s) view.” 343 U.S. at 174, n. 2, 72 S.Ct. at 594.
Therefore, in the Spector case, six Justices were of the opinion that the issue of “splitting the elements” was open and reserved for future decision, and three Justices thought such a procedure *442in a criminal proceeding did not conform to constitutional requisites. The only and obvious conclusion to be reached from the foregoing is that the Yakus, Cox, and Heikkinen cases are poor authority for the position taken by the Government, and that “federal practice” in this regard is not at all as “settled” as the Government might have it.
The authority of Yakus and Cox is not compelling in this case for another reason. One cannot but conclude from a reading of these cases that the Court was impressed by the extraordinary nature of the legislation involved. The “streamlined” procedures for review under the Emergency Price Control Act (Yakus) and the Selective Training and Service Act (Cox) were necessitated by the war-time emergency and, as such, certainly should not be determinative of issues raised under peace-time operation of the Internal Revenue Act.
Likewise, deportation liability as involved in Heikkinen differs markedly from tax liability. The former has always been considered as an executive, rather than a legislative, responsibility. Furthermore, “administrative determinations of liability to deportation have been sustained as constitutional only by considering them to be exclusively civil in nature, with no criminal consequences or connotations.” United States v. Spector, supra 348 U.S. at 178, 72 S.Ct. at 596 (dissenting opinion). Such is not the case here, wherein the entire proceeding was criminal in conception and operation — violation of Section 7201 of the Internal Revenue Code of 1954 being denominated a felony. In short, icriminal tax cases should be considered apart from cases involving deportation.
The foregoing brings to mind another well-drawn distinction between the administrative action taken by the Internal Revenue Service in such a case as this and other administrative action of governmental agencies. Such distinction has been formulated as follows:2 3
“* * * (W)here the administrative agency is set up not so much to carry out a general economic or social policy as to lay a foundation for criminal prosecutions, then it should be beyond the power of the legislature to vest such agency even with the power to determine the facts and make such finding binding in a criminal prosecution.”
Certainly one of the primary purposes of the Internal Revenue Service in making a determination as to a tax assessment or a tax deficiency is to prepare for possible criminal prosecution. Such is not so in proceedings involving deportation liability, price control, or selective service classification. For example, every male citizen of a certain age is given a selective service classification, not merely those who appear to have violated the law and whom the Government or the Selective Service Board deem susceptible to prosecution. In other words, the action taken by the Internal Revenue Service such as we have in this case is intimately related to prosecution for criminal behavior, Moreover, had it been agents of the F.B.I., rather than those of the I.R.S., who conducted the investigation, surely the result of that investigation would not receive the immunity from review that such a finding is said to receive when it is made by the I.R.S. — • simply because the latter is an “administrative agency”.
We have already referred to the fact that, at the time of the trial in this case, the Government was of the opinion that proof of a valid assessment was necessary to a successful prosecution of the defendants. The full colloquy on this point is as follows:
“The Court: All right, gentlemen, this case rises or falls on those four exhibits (the assessments and the waivers).
“Mr. McBride (for the Government) : We have to show there was an assessment, a legal assessment.
*443“The Court: Would you agree to that statement, that this case rises or falls on the four exhibits now being offered?
“Mr. Bigler (for the defendants): I think there must be an assessment.
I assume these are your only exhibits of your assessment.”
The Government now contends, however, that the issue cannot and should not be submitted to a jury for determination thereon. The obvious question then becomes : Why did the Government submit such evidence on the issue? and Why did the Government attorney make such a statement in open court? In this connection it is well to point out that much of the important evidence going to the validity of the assessment introduced by the Government at the trial did not pertain to the assessment directly, but rather to the issue of fraud and the statute of limitations. Perhaps, then, the Government did so for the reason that it did not deem the assessment itself reviewable by the jury, but it did think the collateral question of fraud reviewable. The uncontradicted assumption of Mr. Bigler, counsel for defendants, would then be correct — that the “only exhibits of your assessment” were the assessment and waivers themselves (Government Exhibits 1, 2, 3, and 4), and that the indictment, plea, judgment, and offers of compromise in the earlier fraud case (Government Exhibits 16, 17, and 18) were not such exhibits of the assessment. As such, the latter should have been submitted to the jury for a determination on the issue of fraud and the statute of limitations.
As a conclusion to the foregoing remarks on the issue presented in the Government’s Petition for Rehearing, we adopt the closing paragraph of Professor Bernard Schwartz’s article, “Administrative Law and the Sixth Amendment: ‘Malaise in the Administrative Scheme’ ”, as follows:
“ * * * If that constitutional provision (the Sixth Amendment) means anything, one accused of a crime which consists in the violation of an administrative order is entitled to a full trial on his defense that he committed no crime because the order in question was invalid. The concepts of statutory provisions for judicial review as exclusive and of a narrow scope of review may be valid and valuable ones in administrative-law cases. That is true because such cases are exclusively civil in character. They are wholly out of place in criminal proceedings. When the criminal law is used as an auxiliary of the administrative process, the ordinary concepts applicable in administrative law proceeding must give way in favor of the constitutional right of the accused to a full and fair trial. Only thus can our administrative law be reconciled with the demands of the Sixth Amendment.” 3
We are compelled to the conclusion that failure to submit to the jury the issue of fraud — as it pertained to the validity of the assessment — constituted reversible error.
SWYGERT, Circuit Judge, votes to grant the Government’s Petition for Rehearing and does not join in this Addendum but adheres to his dissent.
. Int.Rev.Code of 1954, § 6201.
. 28 U.S.C. § 1346; Int.Rev.Code of 1954, §§ 6213, 7422.
. This language of Justice Jackson’s dissent in Spector was analyzed and approved in Schwartz, Administrative Law and the Sixth Amendment: “Malaise in the Administrative Scheme”, 40 A..B.A.J. 107 (February, 1954).
. Fraenke'I, Can the Administrative Process Evade the Sixth Amendment?, 1 Syracuse L.Rev. 173,185 (1949).
. 40 A.B.A.J. 107, 166 (February, 1954).