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

Judicial Council of California Criminal Jury Instructions (2023 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);

[3. When the defendant supplied the information, (he/she) knew that

it was (false/ [or] fraudulent);]

[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].

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];

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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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Page last reviewed May 2023