Jack A. Terrell, his younger brother, Raymon L. Terrell, and Richard L. Williams appeal their convictions, each on one count, for corruptly endeavoring to impede or obstruct the due administration of the Internal Revenue Code, in violation of 26 U.S.C. § 7212(a) (1976).1 In addition, Raymon Terrell and Williams appeal their convictions, each on one count, for filing false withholding exemption certificates (W-4 forms), in violation of 26 U.S.C. § 7205 (1976).2 In 1979 Williams and Raymon Terrell filed false withholding exemption certificates on the advice and with the assistance of Jack Terrell. Thereafter the Government commenced this prosecution. Following a five-day trial the jury found appellants guilty of the offenses charged and the district court3 entered judgments of conviction.

On appeal all three appellants contend that their conduct did not fall within the ambit of section 7212's prohibitions. In addition, Jack Terrell attacks the sufficiency of the evidence to support his conviction, and alternatively asserts that he should have a new trial based on the following grounds: prosecutorial misconduct in argument; the introduction of prejudicial evidence on the conspiracy count which the Government later voluntarily dismissed; and the alleged physical incapacity of a juror that prevented her from continuing to hold out against a guilty verdict. Appellants Williams and Raymon Terrell attack the sufficiency of the evidence to support their convictions, assert error in the court's jury instruction regarding the section 7205 violations, and join in Jack Terrell's motion for a new trial based on juror incapacity. Williams also asserts as error the denial of his motion to sever his trial from Jack Terrell's.

We have reviewed the record and find no merit in any of the claims made by appellants, except their assertion that section 7212 does not apply to their conduct. We consider only that issue in depth and hold that section 7212 does not apply to the conduct of Raymon Terrell and Williams, but does apply to Jack Terrell's conduct.

Accordingly, we affirm the convictions of Raymon Terrell and Williams only on their respective section 7205 counts, and affirm the conviction of Jack Terrell on the section 7212 charge.

I. Factual Background.

Although the parties hotly contested the relevant issues at trial, the factual background to this case is relatively simple.4 In the early 1970's Jack Terrell established a one-man consumer self-help outfit with the initials M.A.C.O., an acronym which came to signify a variety of meanings.5 M.A.C.O. subsequently metamorphosed into the People Helping People Association, an organization (in the person of Jack Terrell) which, for a $300 fee, dispensed financial advice and rendered consumer services, including membership in a prepaid legal assistance plan.

Early in 1979, Terrell, by then a four-year janitorial employee with the Quaker Oats Company, undertook a study of the tax system by sending for the literature of several tax protest organizations. After reading six to eight books obtained through the mail, Terrell held himself out as a tax consultant and proffered tax advice to the members of his People Helping People Association. Among other things, Terrell advised the members of his organization and others to file W-4 forms claiming exempt status.6

By September 1979 Jack Terrell, Raymon Terrell, and Richard Williams had filed such forms with their employers. In mid-August 1979 each of them submitted W-4 forms claiming exempt status pursuant to 26 U.S.C. § 6012 (1976). Jack Terrell's and Williams' employer, Quaker Oats, rejected these forms as invalid. Raymon Terrell's employer, Wire Rope Corporation, similarly rejected the W-4 form submitted by him as nonconforming.7 Subsequently Jack Terrell filled out another W-4 form for Williams, and Williams submitted the form to Quaker Oats on August 28, 1979. Jack Terrell also filled out another W-4 form for Raymon Terrell and submitted the executed form to Wire Rope in his brother's behalf on August 27, 1979. Around this time Jack Terrell submitted another W-4 form to Quaker Oats claiming exempt status.8

A Missouri federal grand jury returned a twelve-count indictment charging the Terrells, Williams, and eight other individuals with corruptly endeavoring to impede or obstruct the due administration of the Internal Revenue Code. In other counts the indictment charged each of them with conspiring to defraud the United States by depriving it of the benefit of receiving individual federal income tax withholding payments in a timely and proper manner,9 and each of them, excepting Jack Terrell, with filing false W-4 forms. The district court severed the charges against the Terrells, Williams, and two other defendants for trial. Before trial the two other defendants entered into plea agreements with the United States Attorney. At trial the Government voluntarily dismissed the conspiracy count of the indictment following the submission of its case-in-chief.

Williams and the Terrells contended in their defense that they had acted out of a good faith misinterpretation of the law and therefore lacked the requisite intent to commit the criminal offenses charged.10 In addition, in appropriate motions before and after trial, appellants asserted the inapplicability of section 7212 to their conduct.

II. Section 7212.

Section 7212(a) of the Internal Revenue Code, in its offense-defining portion, consists primarily of two clauses. The first, more specific clause, prohibiting corrupt or forcible endeavors to interfere with United States employees acting pursuant to Title 26, has been the subject of judicial interpretation. See, e. g., United States v. Rybicki, 403 F.2d 599 (6th Cir. 1968). Our research, however, has disclosed no case brought by the Government under the more general "omnibus clause" of section 7212.11 We note, therefore, that the proper interpretation of this clause presents us with an issue of first impression, and that we proceed cautiously where for over twenty-five years the Government has feared to tread.12

The relevant language of section 7212 under which appellants were convicted contains three elements: (1) in any way corruptly (2) endeavoring (3) to obstruct or impede the due administration of the Internal Revenue Code. Cf. United States v. Tedesco, 635 F.2d 902 at p. 906 (1st Cir. 1980) (listing elements of 18 U.S.C. § 1503 (1976)). Appellants contend primarily that the Government failed to prove the third element enumerated above. Specifically, they argue that neither willfully filing false W-4 forms (Raymon Terrell and Williams) nor aiding and abetting the filing of such forms (Jack Terrell) constitutes an endeavor to obstruct the due administration of the Internal Revenue Code.13

The Government, on the other hand, contends with some circularity that section 7212 prohibits all unprivileged conduct of individuals or groups which subverts the operation of the tax system.14 In making this argument the Government more pointedly invites us to construe section 7212 in pari materia with the principal obstruction of justice statutes, 18 U.S.C. §§ 1503 and 1505 (1976).15 In construing these statutes, however, courts have split over whether the commission of simple perjury, conduct analogous to the filing of a false W-4 form under penalty of perjury, constitutes the offense of obstruction. Compare United States v. Griffin, supra note 11, 589 F.2d 201-06, with United States v. Essex, 407 F.2d 214 (6th Cir. 1969). See generally In re Michael, 326 U.S. 224 (1945).16

Nevertheless, we agree with the Government that the broad language of section 7212's omnibus clause demands a correspondingly broad construction. But section 7212 is only one of several general criminal provisions contained in the Internal Revenue Code. See 26 U.S.C. §§ 7201-7215 (1976). In sum, these provisions establish what the Supreme Court described as

a system of sanctions which singly or in combination were calculated to induce prompt and forthright fulfillment of every duty under the income tax law and to provide a penalty suitable to every degree of delinquency. (Spies v. United States, 317 U.S. 492, 497, 63 S. Ct. 364, 367, 87 L. Ed. 418 (1943), quoted in Sansone v. United States, 380 U.S. 343, 350-51, 85 S. Ct. 1004, 1009, 1010, 13 L. Ed. 2d 882 (1965).)

In order to determine the proper construction of section 7212, we therefore examine the section in light of the Code's general criminal provisions. See Spies v. United States, supra, 317 U.S. at 495, 63 S. Ct. at 366.

The Government essentially contends, with respect to the section 7212 convictions of Raymon Terrell and Richard Williams, that the willful filings of false W-4 forms constitute endeavors to impede the due administration of the Internal Revenue Code. Not only does section 7205, under which Terrell and Williams were also prosecuted and convicted, expressly make this conduct illegal, it provides that the fine and imprisonment it authorizes upon conviction shall be "in lieu of any other penalty provided by law * * *." 26 U.S.C. § 7205 (1976), quoted in note 2 supra. Congress has therefore confined the punishment for conduct in violation of section 7205 exclusively to that authorized under section 7205. From this we infer, as a matter of statutory construction, that Congress intended criminal prosecutions for such conduct to be maintained solely under section 7205, and, therefore, that Congress did not intend to include such conduct under section 7212.17 Accordingly, we reverse the section 7212 convictions of Raymon Terrell and Richard Williams.

Jack Terrell's section 7212 conviction, however, presents us with different considerations. At trial the uncontroverted evidence indicated that Terrell physically assisted the willfully false filings of both Raymon Terrell's and Richard Williams' false W-4 forms.18 Such conduct violates the Code's aiding and abetting provision, 26 U.S.C. § 7206(2) (1976).19 See United States v. Crum, 529 F.2d 1380, 1382 n.2 (9th Cir. 1976) (listing elements of offense of aiding and abetting tax fraud). Unlike section 7205, section 7206(2) contains no language stating that the penalties it authorizes are exclusive of any others provided by law. Moreover, section 7206(2) is a felony provision authorizing penalties identical (with the exception of the costs of prosecution) to those authorized by section 7212.20

Jack Terrell's section 7212 conviction therefore raises the sole issue whether conduct assisting the preparation and filing of false W-4 forms constitutes an endeavor to impede or obstruct the due administration of the Internal Revenue Code. We conclude that section 7212's omnibus clause plainly comprehends this conduct. Accordingly, we affirm Jack Terrell's section 7212 conviction.

III. Conclusion.

A. We affirm Jack Terrell's conviction for violation of section 7212 (count II) and his sentence of imprisonment under a split sentence of eighteen months (all but four months suspended), fine of $1,000, and probation for three years on the suspended portion of his sentence.

B. We affirm the conviction of Raymon L. Terrell on count XI (section 7205 violation), but reverse the conviction on count II (section 7212 violation). Because the district court imposed concurrent sentences on this appellant, the sentence imposed will stand.21

C. We affirm the conviction of Richard L. Williams on count IV (section 7205 violation), but reverse the conviction on count II (violation of section 7212). The sentence of three years probation imposed concurrently on each conviction will stand, as will the fine imposed on count IV.

Convictions affirmed in part and reversed in part, with concurrent sentences as imposed being affirmed.