Greulich

concurring in part and dissenting in part.

I agree with my colleagues that Counts 1, 2, 6 and 7 should be affirmed, but respectfully dissent from their conclusion that Counts 3, 4 and 5 should be reversed.

The majority gives a fanciful interpretation of what it means to leave blank Part II of the Form 5724, the portion of the form calling for the names, addresses, etc. of “Persons to Whom Winnings are Taxable.” I respectfully suggest that the only reasonable interpretation of leaving Part II blank, and then declaring under penalty of perjury that the signer has “correctly identified] each person entitled to any portion of this payment and any payments from identical wagers,” is that the signer is declaring that there are no such persons. In truth, there were such persons, and the government proved that the defendant knew that. Because the government proved that the defendant’s declarations in Counts 3, 4 and 5 were wilfully and knowingly false, I would affirm the district court as to all counts.

*808 MEMORANDUM

James Greulieh appeals his conviction for subscribing to false tax documents in violation of 26 U.S.C. § 7206 (1), and conspiracy to do so under 18 U.S.C. §§ 2 (b), 371 and 26 U.S.C. § 7206 (1).

Greulich’s conviction on counts three, four, and five of the indictment cannot stand. Those counts charged him under 26 U.S.C. § 7206 (1) with making false statements on IRS forms 5754, which he completed when claiming gambling winnings at racetracks. The government alleges that the forms he submitted were false because they omitted the persons who were actually entitled to the winnings, and thus created the false impression that all of the receipts should have been taxable to Greulich. Greulich completed the first part of the two-part form, entitled “Person to Whom Winnings are Paid,” by listing himself. Part II of the form, which was labeled “Person to Whom Winnings are Taxable,” instructed the person filling out the form to list all persons, including himself, entitled to any portion of the proceeds. Greulich failed to fill out this Part of the form at all, and thus failed to fist himself or any other persons. As a result he did not furnish any names of persons who…