2800. Failure to File Tax Return
The defendant is charged [in Count ______] with 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 required time.
[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.]
The court has a sua sponte duty to give this instruction defining the elements of the crime.
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.
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].
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, 140.03 (Matthew Bender).
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. 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).
(New January 2006)