dissenting:
Oscar Porcelli owes the State of New York nearly $5 million in state sales taxes that he failed to collect from his retail gasoline customers. New York is entitled to sue him civilly for those taxes and to collect penalties and interest. N.Y.Tax Law § 1145 (McKinney 1987). New York can also prosecute him criminally for the misdemeanor of willfully failing to collect sales taxes from a customer. N.Y.Tax Law § 1145(b) (McKinney 1966).1 But New York has not pursued either of its state law remedies. Instead, the United States has charged Porcelli under federal mail fraud and racketeering statutes and has obtained a felony conviction that sends him to jail for six months and requires him to forfeit his property in an amount equal to three times the unpaid sales taxes. Before tolerating such an extraordinary disparity between federal and state enforcement techniques, especially as to a matter so central to the prerogatives of states as the collection of their own taxes, courts should be scrupulous in making sure that the conduct punished under federal authority falls within the reach of federal statutes. In my view, the mail fraud statute, as construed by the Supreme Court in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), does not apply to Por-celli’s conduct; moreover, if, as the panel’s opinion holds, the statute could apply to Porcelli’s conduct on a theory of concealment of a chose in action, his conviction is invalid because this theory was not charged in the indictment nor placed before the jury in the trial judge’s charge and therefore, under well-settled law, cannot be the basis for upholding the verdict. I therefore respectfully dissent.
1. The Absence of a Deprivation of the State’s Property
Prior to McNally, this Circuit and others had held that failure to pay state taxes could establish a scheme to defraud within the meaning of the federal mail and wire fraud statutes. United States v. DeFiore, 720 F.2d 757 (2d Cir.1983), cert. denied, 467 U.S. 1241, 104 S.Ct. 3511, 82 L.Ed.2d 820 (1984); United States v. Melvin, 544 F.2d 767 (5th Cir.), cert. denied, 430 U.S. 910, 97 S.Ct. 1184, 51 L.Ed.2d 587 (1977); United States v. Brewer, 528 F.2d 492 (4th Cir.1975); United States v. Mirabile, 503 F.2d 1065 (8th Cir.1974), cert. denied, 420 U.S. 973, 95 S.Ct. 1395, 43 L.Ed.2d 653 (1975); United States v. Flaxman, 495 F.2d 344 (7th Cir.), cert. denied, 419 U.S. 1031, 95 S.Ct. 512, 42 L.Ed.2d 306 (1974). McNally requires us to reconsider the continued validity of that line of cases.
McNally contains two holdings. First, the Court held that fraud within the meaning of the federal mail and wire fraud statutes requires a “ ‘deprivation’ ” of another’s money or property. 107 S.Ct. at 2881 (quoting Hammerschmidt v. United States, 265 U.S. 182, 188, 44 S.Ct. 511, 512, 68 L.Ed. 968 (1924)). Second, the Court held that “the intangible right of the citizenry to good government” is not property within the meaning of the federal fraud statutes. 107 S.Ct. at 2879.2 McNally’s second holding, concerning the intangible right to honest government, is not implicated by Porcelli’s appeal. But the first holding, requiring a deprivation of another’s money or property, squarely applies. The deprivation need not be successful, but it must be the object of the scheme to defraud.
The panel majority recognizes that after McNally a mail fraud conviction may be upheld only upon proof that the defendant schemed to deprive another of money or *1368property. As the majority puts it, and I fully agree, the concept of deprivation means “obtaining property with an intent not to pay as opposed to mere failure to pay.” 865 F.2d at 1359. I also agree with the majority’s further observation that Por-celli would have deprived the State of its property if it had been shown that he had collected sales taxes and had failed to remit them to the state tax collector.3 But, as the majority acknowledges, there was no evidence that Porcelli collected even $1 of sales tax.
Moreover, the indictment does not charge him with collecting any sales taxes, nor describe the scheme to defraud as the failure to remit collected taxes. The indictment simply alleges that retail gasoline vendors are “required” to collect sales taxes and that Porcelli’s scheme was to defraud the State of “sales taxes due.” Though the indictment also alleges a scheme “to obtain monies from the State of New York” (emphasis added), there was no evidence that any money moved from New York to Porcelli, nor did the jury charge require the jury to find that this happened. The indictment charged and the proof established only that Porcelli failed to pay the sales taxes that he owed to New York because he had failed to collect them. See N.Y.Tax Law § 1137(e)(1) (McKinney 1987).
This distinction between owing uncollected taxes and failing to remit collected taxes is not just a technical matter of pleading and proof; it has significant dollar consequences for Porcelli and New York. New York imposes an 8% sales tax.4 If the United States (on behalf of New York) had charged Porcelli with collecting but failing to remit the sales tax, and if the evidence had shown that he did collect the tax, the amount of the tax would have been calculated by dividing Porcelli’s sales revenue by 1.08 and subtracting the quotient from his sales revenue.5 Thus, for each dollar of revenue, the tax collected would have been 7.4 cents. In other words, each dollar of revenue would have consisted of 92.6 cents of the sales price of the gasoline plus 7.4 cents (8% of 92.6) of sales tax. However, by charging Porcelli with failing to collect the tax, the Government was able to claim that Porcelli owed New York 8 cents for each dollar of revenue. The Government’s use of the 8-eents-per-dollar approach produced a tax debt of $4,755,000, whereas the 7.4-eents-per-dollar approach would have produced a debt of $4,398,000. Thus, by alleging that Porcelli had never collected the sales tax from his customers, the prosecution gained an extra $357,000 for New York and an extra $714,000 for the United States in forfeited property.
The issue of law for us is whether, after McNally, a person has deprived a state of its money or property by failing to collect taxes and by failing to pay taxes he owes by reason of his failure to collect them. I believe the answer is “no.” Unless and until extracted from Porcelli’s customers, the dollars of sales taxes that he should have collected belonged to those customers, not the State of New York. Once Porcelli failed to collect the sales taxes, he became liable for the amount he should have collected, but that amount, in his hands, was still his property, not New York’s. He owes New York the amount of sales taxes *1369he should have collected, but a debtor does not deprive his creditor of the creditor’s property simply by failing to pay the debt.
It is arguable that Porcelli has deprived New York of his personal share of all the services New York renders to its taxpayers; it is those services that Porcelli has obtained from New York by not paying the taxes he owes. But it is highly doubtful that a taxpayer’s share of state services is the sort of property that may be the object of a mail fraud scheme after McNally. In any event, the indictment did not charge a scheme to defraud New York of a share of state services, and the case was not submitted to the jury on this theory.
What Porcelli has done is fail to pay a debt due the State of New York. Though the mail fraud statute has been given broad application, it has never been interpreted to cover non-payment of debt and may not be so interpreted after McNally. Though willful evasion of taxes is commonly referred to as “tax fraud,” the failure to collect sales taxes and the failure to pay the tax debt resulting from non-collection is not “fraud” in the common-law sense in which McNally uses that term.
II. The Panel’s Theory of Deprivation of Choses in Action
Apparently recognizing that Porcelli may not be said to have deprived New York of its money or property simply because he did not collect sales taxes and did not pay his resulting debt to New York, the panel majority constructs a theory of deprivation of property based on the idea that Porcelli has deprived the state of its “choses in action,” its right to sue Porcelli for the amount of taxes he owes. I can readily agree that New York has a claim against Porcelli for the sales taxes that he owes and that this claim may be regarded as a chose in action. Even if this chose in action is “property” within the meaning of that term in McNally, it is questionable whether Porcelli has “deprived” New York of such property within the meaning of that term in McNally by concealing from New York the amount of the tax debt that he owes. But there is no occasion on this appeal to decide whether the mail fraud statute could be applied to Porcelli on a theory of depriving New York of its chose in action (as distinguished from its money) because this theory was not charged in the indictment, nor presented to the jury.
McNally itself is the most recent authority for the well-settled principle that an uncharged theory cannot be used to salvage a criminal conviction. After invalidating the conviction that had been obtained on the theory that McNally had deprived citizens of their right to honest performance of his duties, the Supreme Court refused to uphold the conviction on an alternative theory, pressed at oral argument, that McNally had obtained property (a share of insurance commissions) by means of false pretenses. The Court pointed out that “there was nothing in the jury charge that required such a finding [of receipt of money by false pretenses].” 107 S.Ct. at 2882. So here, there was nothing in the jury charge that required the jurors to find that Porcelli had deprived New York of its property by concealing a chose in action. The principle that a conviction may not be salvaged by a theory of violation not submitted to the jury has been invoked repeatedly. E.g., Chiarella v. United States, 445 U.S. 222, 236-37, 100 S.Ct. 1108, 1118-19, 63 L.Ed.2d 348 (1980); Rewis v. United States, 401 U.S. 808, 814, 91 S.Ct. 1056, 1060, 28 L.Ed.2d 493 (1971); Dunn v. United States, 442 U.S. 100, 106-07, 99 S.Ct. 2190, 2194-95, 60 L.Ed.2d 743 (1979).
Conclusion
Porcelli was not charged with collecting sales taxes and thereafter failing to remit to New York tax dollars that belonged to New York. The jury charge described his offense as defrauding New York of “sales taxes due on the retail sale of gasoline.” Porcelli owed those taxes under New York law because he had not collected the taxes, He owes New York a debt, but he has not deprived New York of its money or property. After McNally, his conduct in failing to pay his sales tax debt is not within the scope of the federal mail fraud statute. The alternative theory that he deprived *1370New York of its property by concealing its chose in action was neither charged nor submitted to the jury and may not be used to uphold the conviction. We should not strain to uphold a federal conviction for nonpayment of state taxes, a matter best left, in the absence of clear federal law coverage, to the abundant civil and criminal authority of the states. For these reasons, I respectfully dissent.
. This version of section 1145(b) was in effect at the time of the events in this case. See 1965 N.Y.Laws, ch. 93, § 1145(b) (1965) ("any person willfully failing to collect the tax from a customer” is guilty of a misdemeanor). The current version, similarly worded, is N.Y.Tax Law § 1817(c) (McKinney 1987).
. As the Court was subsequently to make clear, some intangible rights, such as an employer’s right to maintain the secrecy of its information, are property within the meaning of federal fraud statutes. Carpenter v. United States, 484 U.S. 19, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987).
. The majority suggests that collection of sales taxes by Porcelli from customers would have been proven if there had been evidence that the sales tax amount was posted on signs at the gas pumps. Obviously, this speculation cannot save the conviction because there was no such evidence. Moreover, it is not at all clear that sales taxes are ever reflected on signs at the pump, either in pennies or as a percent of the selling price. The state sales tax is not a gasoline excise tax, the amount of which is sometimes displayed at the pump.
. The exact percentage of the tax varies throughout the state since there is both a state and a local sales tax. For Porcelli’s sales, the prosecution used an 8 percent rate.
.This calculation is not only a matter of arithmetic; it was testified to by the prosecution’s tax expert, an official of the New York Tax Department. After testifying that the amount of tax should be “backed out” using the calculation in the text if the tax had been collected, the expert then proceeded to calculate Porcelli’s tax debt on the assumption that he had not collected the tax: the expert multiplied the prosecution’s sales figures by 8 percent.