California Criminal Jury Instructions (CALCRIM) (2017)

2800. Failure to File Tax Return

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A. FAILURE TO FILE
2800.Failure to File Tax Return (Rev. & Tax. Code, § 19701(a))
The defendant is charged [in Count ] with failing to (file a tax
return with/ [or] supply information to) the Franchise Tax Board [in
violation of Revenue and Taxation Code section 19701(a)].
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 repeatedly failed to (file a tax return/ [or] supply
required information) over a period of two years or more;
AND
3. The defendant’s failure to (file the return/ [or] supply required
information) resulted in an estimated delinquent tax liability of
at least fifteen thousand dollars.
[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).]
[If the People prove beyond a reasonable doubt that the defendant was
the (president/ [or] chief operating officer) of a corporation, you may
but are not required to conclude that the defendant is the person
responsible for (filing a return with/ [or] supplying information to) the
Franchise Tax Board as required for that corporation.]
[The People do not have to prove the exact amount of unreported
income.]
[The People do not have to prove that the (unreported/ [or]
underreported) income came from illegal activity.]
New January 2006; Revised August 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
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The two bracketed paragraphs that begin with “If the People prove beyond a
reasonable doubt that” both explain rebuttable presumptions created by statute. (See
Rev. & Tax. Code, §§ 19703, 19701(d); 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 instructions have been written as permissive inferences.
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 the Franchise Tax Board” if there is
evidence that the return was filed or the information was supplied.
Similarly, the court must not give the bracketed paragraph that begins with “If the
People prove beyond a reasonable doubt that the defendant was the (president” if
there is evidence that someone else was responsible for filing the return or
supplying the information.
AUTHORITY
• Elements. Rev. & Tax. Code, § 19701(a).
Certificate of Franchise Tax Board. Rev. & Tax. Code, § 19703.
• President Responsible for Corporate Filings. Rev. & Tax. Code, § 19701(d).
• 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, § 127.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, §§ 140.02[5], 140.03 (Matthew Bender).
COMMENTARY
Revenue and Taxation Code section 19701(a) does not require that the defendant’s
conduct be “willful” and specifically states that the act may be “[w]ith or without
intent to evade.” (Rev. & Tax. Code, § 19701(a).) Courts have held that this
language creates a strict liability offense with no intent requirement. (People v.
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Allen (1993) 20 Cal.App.4th 846, 849 [25 Cal.Rptr.2d 26]; People v. Kuhn (1963)
216 Cal.App.2d 695, 698 [31 Cal.Rptr. 253]; People v. Jones (1983) 149
Cal.App.3d Supp. 41, 47 [197 Cal.Rptr. 273].) In addition, in People v. Hagen
(1998) 19 Cal.4th 652, 670 [80 Cal.Rptr.2d 24, 967 P.2d 563], the Court held that
section 19701 was a lesser included offense of section 19705, willful failure to file
a tax return. The Court then concluded that the failure to instruct on the lesser
included offense was not error since the “the evidence provided no basis for
reasonable doubt as to willfulness.” (Id. at p. 672.) Thus, it appears that
“willfulness” is not an element of a violation of section 19701(a).
Revenue and Taxation Code section 19701(a) states that a person is liable if the
person
repeatedly over a period of two years or more, fails to file any return or to
supply any information required, or who . . . makes, renders, signs, or verifies
any false or fraudulent return or statement, or supplies any false or fraudulent
information, resulting in an estimated delinquent tax liability of at least fifteen
thousand dollars ($15,000).
It is not completely clear from this language whether the requirement of an
estimated delinquent tax liability of at least fifteen thousand dollars applies both to
the failure to file a return and to the making, etc. of a false or fraudulent return.
The Legislative Counsel’s Digest of Assembly Bill No. 139, the bill that added this
provision to the statute, indicates that this provision is intended to apply to all the
violations specified in Revenue and Taxation Code section 19701(a), including the
failure to file a return or supply required information. (See Legis. Counsel’s Dig.,
Assem. Bill No. 139 (2005–2006 Reg. Sess.) Stats. 2005, ch. 74, par. (34).) The
committee has adopted this interpretation pending clarification from either the
Legislature or case law.
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