CALCRIM No. 2812. Willfully Filing False Tax Return: Intent to Evade Tax (Rev. & Tax. Code, § 19706)

Judicial Council of California Criminal Jury Instructions (2023 edition)

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2812.Willfully Filing False Tax Return: Intent to Evade Tax (Rev. &
Tax. Code, § 19706)
The defendant is charged [in Count ] with (supplying (false/ [or]
fraudulent) information/ [or] (making[,]/ [or] verifying [,]/ [or] signing[,]/
[or] rendering) [a] (false/ [or] fraudulent) (tax return[s]/ [or]
statement[s])) to the Franchise Tax Board with intent to evade a tax [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 (supplied information/ [or] (made[,]/ [or]
verified[,]/ [or] signed[,]/ [or] rendered)) [a] (tax return[s]/ [or]
statement[s] provided) to the Franchise Tax Board;
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;]
4. When the defendant acted, (he/she) did so voluntarily, with intent
to violate a legal duty known to (him/her);
AND
5. When the defendant acted, (he/she) intended to unlawfully evade
paying a tax.
[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
683
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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 19706. If the defendant is charged
with a violation of section 19705(a)(1), give CALCRIM No. 2811, Willfully Filing
False Tax Return: Statement Made Under Penalty of Perjury.
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
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.”
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.
• 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.
• 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.
• Need Not Prove Exact Amount. United States v. Wilson (3d Cir. 1979) 601 F.2d
CALCRIM No. 2812 TAX CRIMES
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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].
• 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.
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).
2813-2824. Reserved for Future Use
TAX CRIMES CALCRIM No. 2812
685

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