California Criminal Jury Instructions (CALCRIM) (2017)

2801. Willful Failure to File Tax Return

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2801.Willful Failure to File Tax Return (Rev. & Tax. Code,
§ 19706)
The defendant is charged [in Count ] with intentionally failing to
(file a tax return with/ [or] supply information to) the Franchise Tax
Board [in violation of Revenue and Taxation Code section 19706].
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 income/ [or] owed
[additional] taxes).]
[The People do not have to prove that the (unreported/ [or]
underreported) income came from illegal activity.]
New January 2006; Revised June 2007
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
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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.)
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 941]; Distinctive Theatres of Columbus v.
Looker (S.D.Ohio 1958) 165 F.Supp. 410, 411.
TAX CRIMES CALCRIM No. 2801
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• 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].
• Amount of Unpaid Taxes Need Not Be Substantial. People v. Mojica (2006)
139 Cal.App.4th 1197, 1204 [43 Cal.Rptr.3d 634]; United States v. Holland
(1989) 880 F.2d 1091, 1095–1096.
• 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].
2802–2809. Reserved for Future Use
CALCRIM No. 2801 TAX CRIMES
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