CALCRIM No. 2810. False Tax Return (Rev. & Tax. Code, § 19701(a))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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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]
667
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].
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];
CALCRIM No. 2810 TAX CRIMES
668
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.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Governmental Authority, § 136.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, §§ 140.02, 140.03 (Matthew Bender).
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