DOCKET NO.: 304
DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Third Circuit
CITATION: 354 US 351 (1957)
ARGUED: Mar 04, 1957
DECIDED: Jun 17, 1957
Facts of the case
Media for United States v. Calamaro
Audio Transcription for Oral Argument - March 04, 1957 in United States v. Calamaro
United States of America versus Victor Calamaro.
Leonard B. Sand:
Mr. Chief Justice, may it please the Court.
This case arises on certiorari to the Third Circuit under the federal wagering tax and presents the question whether a numbers pick-up man is subject to the occupational stamp tax which is imposed upon persons who receive wagers for or on behalf of any person who is subject to the excise tax.
The Third Circuit has decided that a pick-up man is not subject to such a tax.
This decision is in direct conflict with the decision of the Fifth Circuit in Sagonias v. United States, 223 F.2d 146, certiorari denied 350 U.S.840.
To resolve this conflict, the Government petitioned for certiorari which this Court granted.Congress in 1951 enacted two new taxes to deal with professional gambling.
The first of these taxes was the excise tax which is set forth on page 3 of the Government's brief.
This was a 10% excise task and subdivision (d) of Section 3285 provides that each person who is engaged in the business of accepting wagers shall be liable for and shall pay the tax under this subchapter on all wagers placed with him.
The legislative history of this Section indicates that it was designed to cover the person who acted in the role of the principal who accepted wagers on his own account and to -- for the risk of profit or loss on such wagers.
The Government concedes that the defendant in this case was not such a person and so the excise tax is not the tax with which we are primarily concerned in this case.
However, the second tax imposed in subchapter B, the occupational tax was imposed on a broader member of persons.
Section 3290 provides, reading from page three of the Government's brief, "A special tax of $50 per year shall be paid by each person who is liable for tax under subchapter A," interpolating that is each person who functions in the role of the -- of the principal, the banker, the man who has the risk of profit or loss or the statute continues, "Who is engaged in receiving wagers for or on behalf of any person so liable."
And the question in -- in this case is whether a pick-up man is engaged in receiving wagers for or on behalf of such a person.
The penalty provision is contained in Section 3294, cited on page 4 of the Government's brief and provides that any person who does an act which makes him liable for the tax without having paid such tax shall be fined not less than $1000 nor more than $5000.
It was for violation of this penalty Section that an information was filed against the defendant in the District Court for the Eastern District of Pennsylvania.
At that trial, which was before a jury, evidence was presented by Philadelphia policemen who are experts in the operation of the numbers racket in the City of Philadelphia.
The evidence indicated that the practices followed in the numbers game were fairly-well standardized.
A person wishing to place a -- a wager in the numbers game would not come in direct contact with the banker or the principal, rather he would come in direct contact with the person known as the writer and would tell the writer the three-digit number on wish -- on which he wish to make a bet and would give the money to the writer.
The writer would keep a book which was a triplicate form book and on this book he would indicate the number which was selected by the player and the amount which the -- was to be wagered.
The writer would keep for his own records a white copy of this record, would give to the player a tissue carbon copy.
There would then remain a third copy which is a yellow copy and which would ultimately be turned over to the pick-up man.
The pick-up man's function was to operate as a liaison between the bank, the principal, and the writers.
He would daily collect from the writers these yellow pick-up slips and would deliver them to the bank or banker prior to the time towards the end of each day when the winning number would be determined.
Does a writer only work for one bank?
Leonard B. Sand:
A writer would work for one bank.
And the pick-up man works for one writer and one bank?
Leonard B. Sand:
No, Your Honor.
The pick-up man would circulate among various writers.