California Criminal Jury Instructions (CALCRIM) (2017)

2810. False Tax Return

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B. FALSE RETURN
2810.False Tax Return (Rev. & Tax. Code, § 19701(a))
The defendant is charged [in Count ] with (supplying (false/ [or]
fraudulent) information to the Franchise Tax Board/ [or] (making[,]/
[or] verifying[,]/ [or] signing[,]/ [or] rendering) a (false/ [or] fraudulent)
(tax return/ [or] statement)) [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 repeatedly (supplied information to the Franchise
Tax Board/ [or] (made[,]/ [or] verified[,]/ [or] signed[,]/ [or]
rendered [a] tax return[s]/ [or] statement[s]) over a period of two
years or more;
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;]
AND
4. The defendant’s (supplying of (false/ [or] fraudulent)
information/ [or] (making[,]/ [or] verifying[,]/ [or] signing[,]/ [or]
rendering) the (false/ [or] fraudulent) (tax return/ [or]
statement)) resulted in an estimated delinquent tax liability of at
least fifteen thousand dollars.
[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/ [or] [additional] tax owed).]
[The People do not have to prove that the (unreported/ [or]
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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.
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, § 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 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 someone
else was responsible for filing the return or supplying the information.
AUTHORITY
• Elements. Rev. & Tax. Code, § 19701(a).
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, 140.03 (Matthew Bender).
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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).) In the context of failure to file a
tax return, 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. (Id. at p. 670.) The Court then
concluded that the failure to instruct on the lesser included offense was not error
since “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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