CALCRIM No. 2825. Aiding in Preparation of False Tax Return (Rev. & Tax. Code, § 19705(a)(2))

Judicial Council of California Criminal Jury Instructions (2020 edition)

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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 to
(prepare/ [or] present) the (false/ [or] fraudulent) document. [The
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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, 660
CALCRIM No. 2825 TAX CRIMES
678
[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.
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].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Governmental Authority, § 137.
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