2801. Willful Failure to File Tax Return
The defendant is charged [in Count ______] with intentionally failing to (file a tax return with/ [or] supply information to) the Franchise Tax Board.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant was required to (file a tax return with/ [or] supply information to) the Franchise Tax Board;
2. The defendant did not (file the tax return/ [or] supply the information) by the time required;
3. The defendant voluntarily chose not to (file the tax return/ [or] supply the information), with the intent to violate a legal duty known to (him/her);
AND
4. When the defendant made that choice, (he/she) intended to unlawfully evade paying a tax.
[If the People prove beyond a reasonable doubt that the Franchise Tax Board issued a certificate stating that (a return had not been filed/ [or] information had not been supplied) as required by law, you may but are not required to conclude that (the return was not filed/ [or] the information was not supplied).]
[The People do not have to prove the exact amount of (unreported income/ [or] [additional] tax owed). The People must prove beyond a reasonable doubt that the defendant (failed to report a substantial amount of income/ [or] owed a substantial amount in [additional] taxes).]
[The People do not have to prove that the (unreported/ [or] underreported) income came from illegal activity.]
Bench Notes
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the crime.
The statute states that the defendant's acts must be "willful." (Rev. & Tax. Code, § 19706.) As used in the tax code, "willful" means that the defendant must act "in voluntary, intentional violation of a known legal duty." (People v. Hagen (1998) 19 Cal.4th 652, 666 [80 Cal.Rptr.2d 24, 967 P.2d 563].) The committee has chosen to use this description of the meaning of the term in place of the word "willful" to avoid confusion with other instructions that provide a different definition of "willful."
The bracketed paragraph that begins with "If the People prove beyond a reasonable doubt that" explains a rebuttable presumption created by statute. (See Rev. & Tax. Code, § 19703; Evid. Code, §§ 600-607.) The California Supreme Court has held that a jury instruction phrased as a rebuttable presumption in a criminal case creates an unconstitutional mandatory presumption. (People v. Roder (1983) 33 Cal.3d 491, 497-505 [189 Cal.Rptr. 501, 658 P.2d 1302].) In accordance with Roder, the instruction has been written as a permissive inference. In addition, it is only appropriate to instruct the jury on a permissive inference if there is no evidence to contradict the inference. (Evid. Code, § 640.) If any evidence has been introduced to support the opposite factual finding, then the jury "shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption." (Ibid.)
Therefore, the court must not give the bracketed paragraph that begins with "If the People prove beyond a reasonable doubt that" if there is evidence that the return was filed or the information was supplied.
Give the bracketed paragraph that begins with "The People do not have to prove the exact amount" on request. (United States v. Wilson (3d Cir. 1979) 601 F.2d 95, 99; Federal Jury Practice and Instructions, Criminal (5th ed.) § 67.08.) Federal cases have held that when intent to evade is an element of the offense, the prosecution must show that the amount owed in taxes or the amount of unreported income was substantial. (United States v. Wilson, supra, 601 F.2d at p. 99; see also Federal Jury Practice and Instructions, Criminal (5th ed.) § 67.08.) "The word 'substantial' . . . is necessarily a relative term and not susceptible of an exact meaning." (Canaday v. United States (8th Cir. 1966) 354 F.2d 849, 852-853.) "[It] is not measured in terms of gross or net income nor by any particular percentage of the tax shown to be due and payable. All the attendant circumstances must be taken into consideration." (United States v. Nunan (2d Cir. 1956) 236 F.2d 576, 585, cert. den. (1957) 353 U.S. 912 [77 S.Ct. 661, 1 L.Ed.2d 665].) "Whether the tax evaded was 'substantial' is, therefore, a jury question . . . ." (Federal Jury Practice and Instructions, CALCRIM No. 2801
Criminal (5th ed.) § 67.08 [see also § 67.03, noting that "substantial" is generally not defined for the jury].)
Defenses—Instructional Duty
If there is sufficient evidence to raise a reasonable doubt that the defendant had a good faith belief that his or her conduct was legal, the court has a sua sponte duty to give the instruction on this defense. (People v. Hagen (1998) 19 Cal.4th 652, 660 [80 Cal.Rptr.2d 24, 967 P.2d 563].) Give CALCRIM No. 2860, Defense: Good Faith Belief Conduct Legal.
If there is sufficient evidence to raise a reasonable doubt that the defendant relied on the advice of a professional, the court has a sua sponte duty to give the instruction on this defense. (United States v. Mitchell (4th Cir. 1974) 495 F.2d 285, 287-288; see Federal Jury Practice and Instructions, Criminal (5th ed.) § 67.25.) Give CALCRIM No. 2861, Defense: Reliance on Professional Advice.
Authority
Elements. Rev. & Tax. Code, § 19706.
Willful Requires Volitional Violation of Known Legal Duty. People v. Hagen (1998) 19 Cal.4th 652, 666 [80 Cal.Rptr.2d 24, 967 P.2d 563]; see also Federal Jury Practice and Instructions, Criminal (5th ed.) § 67.20.
Evade a Tax Defined. See United States v. Bishop (1973) 412 U.S. 346, 360, fn. 8 [93 S.Ct. 2008, 36 L.Ed.2d 241]; Distinctive Theatres of Columbus v. Looker (S.D.Ohio 1958) 165 F.Supp. 410, 411.
Certificate of Franchise Tax Board. Rev. & Tax. Code, § 19703.
Mandatory Presumption Unconstitutional Unless Instructed as Permissive Inference. People v. Roder (1983) 33 Cal.3d 491, 497-505 [189 Cal.Rptr. 501, 658 P.2d 1302].
Need Not Prove Exact Amount. United States v. Wilson (3d Cir. 1979) 601 F.2d 95, 99; United States v. Johnson (1943) 319 U.S. 503, 517-518 [63 S.Ct 1233, 87 L.Ed. 1546].
Need Not Prove From Illegal Activity. People v. Smith (1984) 155 Cal.App.3d 1103, 1158 [203 Cal.Rptr. 196].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against Governmental Authority, § 128.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140, Challenges to Crimes, §§ 140.02[5], 140.03 (Matthew Bender).
Lesser Included Offenses
Failure to File Tax Return. Rev. & Tax. Code, § 19701; People v. Smith (1984) 155 Cal.App.3d 1103, 1182-1183 [203 Cal.Rptr. 196].
(New January 2006)