CALCRIM No. 2811. Willfully Filing False Tax Return: Statement Made Under Penalty of Perjury (Rev. & Tax. Code, § 19705(a)(1))

Judicial Council of California Criminal Jury Instructions (2020 edition)

Download PDF
2811.Willfully Filing False Tax Return: Statement Made Under
Penalty of Perjury (Rev. & Tax. Code, § 19705(a)(1))
The defendant is charged [in Count ] with intentionally making
and signing (a/an) (false/ [or] inaccurate) (tax return[,]/ [or] statement[,]/
[or other] document) provided to the Franchise Tax Board [in violation
of Revenue and Taxation Code section 19705(a)(1)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant made and signed a (tax return[,]/ [or] statement[,]/
[or other] document) provided to the Franchise Tax Board;
2. The (tax return[,]/ [or] statement[,]/ [or other] document)
(contained/ [or] was verified by) a written declaration that it was
made under penalty of perjury;
3. The (tax return[,]/ [or] statement[,]/ [or other] document)
contained a material statement that was (false/ [or] inaccurate);
4. When the defendant made and signed the (tax return[,]/ [or]
statement[,]/ [or other] document), (he/she) did not believe that
the document was true and correct about every material matter;
AND
5. When the defendant acted, (he/she) did so voluntarily, with the
intent to violate a legal duty known to (him/her).
A (false/ [or] inaccurate) statement is material if a reasonable person
would believe that it could influence the calculation or monitoring of the
amount of tax owed. [Although the People must prove that the statement
was material, the People do not have to prove that any additional tax
was owed to the government.]
[If the People prove beyond a reasonable doubt that the defendant’s
name is signed to a (return[,]/ [or] statement[,]/ [or other] document)
filed with the Franchise Tax Board, you may but are not required to
conclude that the defendant was the person who actually signed the
document. [A document can be filed using (a/an) (computer modem[,]/
[or] magnetic media[,]/ [or] optical disk[,]/ [or] facsimile machine[,]/ [or]
telephone).]]
[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]
underreported) income came from illegal activity.]
670
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of the
crime.
Two statutes prohibit willfully making a false return. (Rev. & Tax. Code,
§§ 19705(a)(1), 19706.) Section 19705(a)(1) requires verification under penalty of
perjury whereas section 19706 requires an intent to evade. (People v. Hagen (1998)
19 Cal.4th 652, 659 [80 Cal.Rptr.2d 24, 967 P.2d 563].) Give this instruction if the
defendant is charged with a violation of section 19705(a)(1). If the defendant is
charged with a violation of section 19706, give CALCRIM No. 2812, Willfully
Filing False Tax Return: Intent to Evade Tax.
The statute states that the defendant’s acts must be “willful.” (Rev. & Tax. Code,
§ 19705(a)(1).) As used in the tax code, “willful” means that the defendant must act
“in 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.”
In the definition of “material,” give the bracketed sentence beginning with
“Although the People must prove that the statement was material” if requested.
(United States v. Ballard (8th Cir. 1976) 535 F.2d 400, 404; Federal Jury Practice
and Instructions, Criminal (5th ed.) §§ 67.15, 67.19.)
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, § 19075(c); 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 defendant
did not sign the document.
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
TAX CRIMES CALCRIM No. 2811
671
[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, § 19705(a)(1); see Federal Jury Practice and
Instructions, Criminal (5th ed.) § 67.15.
• 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.
• False or Inaccurate Statement Required. People v. Hagen (1998) 19 Cal.4th
652, 670 [80 Cal.Rptr.2d 24, 967 P.2d 563].
• Material Defined. People v. Hagen (1998) 19 Cal.4th 652, 667-668 [80
Cal.Rptr.2d 24, 967 P.2d 563].
• 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].
• Electronic Technology Defined. Rev. & Tax. Code, § 18621.5.
LESSER INCLUDED OFFENSES
• Filing False Tax Return. Rev. & Tax. Code, § 19701; People v. Hagen (1998)
19 Cal.4th 652, 670 [80 Cal.Rptr.2d 24, 967 P.2d 563].
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Governmental Authority, § 137.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.02 (Matthew Bender).
CALCRIM No. 2811 TAX CRIMES
672

© Judicial Council of California.