2812. Willfully Filing False Tax Return: Intent to Evade Tax
The defendant is charged [in Count ______] with (supplying (false/ [or] fraudulent) information/ [or] (making[,]/ [or] verifying [,]/ [or] signing[,]/ [or] rendering) a (false/ [or] fraudulent) (tax return/ [or] statement) provided) to the Franchise Tax Board with intent to evade a tax.
To prove that the defendant is guilty of this crime, the People must prove that:
1. The defendant (supplied information/ [or] (made[,]/ [or] verified[,]/ [or] signed[,]/ [or] rendered) a (tax return/ [or] statement) provided) to the Franchise Tax Board;
2. The (information[,]/ [or] tax return[,]/ [or] statement) was (false/ [or] fraudulent);
<Alternative 3A—information>
[3. When the defendant supplied the information, (he/she) knew that it was (false/ [or] fraudulent);]
<Alternative 3B—tax return or statement>
[3. When the defendant (made[,]/ [or] verified[,]/ [or] signed[,]/ [or] rendered) the (tax return/ [or] statement), (he/she) knew that it contained (false/ [or] fraudulent) information;]
4. When the defendant acted, (he/she) did so voluntarily, with intent to violate a legal duty known to (him/her);
AND
5. When the defendant acted, (he/she) intended to unlawfully evade paying a tax.
[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.
Two statutes prohibit willfully making a false return. (Rev. & Tax. Code, §§ 19705(a)(1), 19706.) Section 19705(a)(1) requires verification under penalty of perjury whereas section 19706 requires an intent to evade. (People v. Hagen (1998) 19 Cal.4th 652, 659 [80 Cal.Rptr.2d 24, 967 P.2d 563].) Give this instruction if the defendant is charged with a violation of section 19706. If the defendant is charged with a violation of section 19705(a)(1), give CALCRIM No. 2811, Willfully Filing False Tax Return: Statement Made Under Penalty of Perjury.
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."
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, 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.
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 941]; Distinctive Theatres of Columbus v. Looker (S.D.Ohio 1958) 165 F.Supp. 410, 411.
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.
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 (Matthew Bender).
Lesser Included Offenses
Filing False Tax Return. Rev. & Tax. Code, § 19701; People v. Hagen (1998) 19 Cal.4th 652, 670 [80 Cal.Rptr.2d 24, 967 P.2d 563].
(New January 2006)