California Criminal Jury Instructions (CALCRIM) (2017)

2825. Aiding in Preparation of False Tax Return

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C. OTHER TAX OFFENSES
2825.Aiding in Preparation of False Tax Return (Rev. & Tax.
Code, § 19705(a)(2))
The defendant is charged [in Count ] with (aiding in[,]/ [or]
assisting in[,]/ [or] procuring[,]/ [or] counseling[,]/ [or] advising) the
(preparation/ [or] presentation) of a (false/ [or] fraudulent) (tax
return[,]/ [or] affidavit[,]/ [or] claim[,]/ [or other] document) [in
violation of Revenue and Taxation Code section 19705(a)(2)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant (aided in[,]/ assisted in[,]/ [or] procured[,]/ [or]
counseled[,]/ [or] advised) the (preparation/ [or] presentation) of
a (tax return[,]/ [or] affidavit[,]/ [or] claim[,]/ [or other]
document) required under the (personal income/corporation) tax
laws;
2. The (tax return[,]/ [or] affidavit[,]/ [or] claim[,]/ [or other]
document) contained a material statement that was (false/ [or]
fraudulent);
<See Bench Notes on element 3.>
[3. The defendant knew that the (tax return[,]/ [or] affidavit[,]/ [or]
claim[,]/ [or other] document) contained a (false/ [or] fraudulent)
statement;]
AND
(3/4). When the defendant acted, (he/she) did so voluntarily, with
intent that a known legal duty would be violated.
A (false/ [or] fraudulent) 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.]
The People do not need to prove that the taxpayer, as opposed to the
defendant, knew the (tax return[,]/ [or] affidavit[,]/ [or] claim[,]/ [or
other] document) contained a (false/ [or] fraudulent) statement.
Someone aids in the (preparation/ [or] presentation) of a (false/ [or]
fraudulent) (tax return[,]/ [or] affidavit[,]/ [or] claim[,]/ [or other]
document) if, before or during the (preparation/ [or] presentation) of
the document, he or she does something that encourages another person
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to (prepare/ [or] present) the (false/ [or] fraudulent) document. [The
defendant does not need to personally prepare the document or even be
present when the document is completed.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
The statute states that the defendant’s acts must be “willful.” (Rev. & Tax. Code,
§ 19705(a)(2).) 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.”
Element 3 contains a knowledge requirement. The statute does not specifically
require that the defendant knew that the return contained false information. (Rev. &
Tax. Code, § 19705(a)(2).) However, federal pattern jury instructions for the
analogous federal crime (26 U.S.C., § 7206(2)) require that the defendant must
have known that the document was false even though the federal statute also does
not explicitly contain a knowledge requirement. (Pattern Jury Instructions of the
District Judges Association of the Eleventh Circuit, Offense Instruction No. 95
(2003); Pattern Jury Instructions of the District Judges Association of the Fifth
Circuit, Criminal Cases, Instruction No. 2.97 (2001); but see Pattern Jury
Instructions of the Committee on Model Jury Instructions for the Ninth Circuit,
Criminal Cases, Instruction No. 9.38 (2003) [knowledge not specifically required,
defendant must assist in preparing “false” return].) Element 3 is included for the
court to give at its discretion. The committee recommends that the court review
current federal case law, as advised in People v. Hagen (1998) 19 Cal.4th 652 [80
Cal.Rptr.2d 24, 967 P.2d 563].
In the definition of “material,” give the bracketed sentence beginning with
“Although the People must prove that the statement was material” if requested.
(Edwards v. United States (9th Cir. 1967) 375 F.2d 862, 865, overruled on other
grounds in United States v. Bishop (1973) 412 U.S. 346, 351, fn. 3 [93 S.Ct. 2008,
36 L.Ed.2d 941]; see also United States v. Ballard (8th Cir. 1976) 535 F.2d 400,
404; Federal Jury Practice and Instructions, Criminal (5th ed.) §§ 67.15, 67.19.)
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,
CALCRIM No. 2825 TAX CRIMES
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660 [80 Cal.Rptr.2d 24, 967 P.2d 563].) Give CALCRIM No. 2860, Defense: Good
Faith Belief Conduct Legal.
AUTHORITY
• Elements. Rev. & Tax. Code, § 19705(a)(2).
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].
• Material Defined. People v. Hagen (1998) 19 Cal.4th 652, 667–668 [80
Cal.Rptr.2d 24, 967 P.2d 563].
• Aiding and Abetting. United States v. Graham (3d Cir. 1985) 758 F.2d 879,
885; United States v. Buttorff (8th Cir. 1978) 572 F.2d 619, 623.
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
Governmental Authority, § 128.
RELATED ISSUES
Defendant Need Not Personally Prepare Document
Federal courts have held that the analogous federal statute applies to individuals
who counsel and advise the preparation of fraudulent documents. (United States v.
Clark (5th Cir. 1998) 139 F.3d 485, 489–490; United States v. Bryan (5th Cir.
1990) 896 F.2d 68, 74.) The defendant need not personally prepare the document or
even be present when the document is completed. (United States v. Clark, supra,
139 F.3d at pp. 489–490; United States v. Bryan, supra, 896 F.2d at p. 74; see also
United States v. Buttorff (8th Cir. 1978) 572 F.2d 619, 623 [sufficient evidence of
aiding where defendants lectured about antitax views to large groups].)
TAX CRIMES CALCRIM No. 2825
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