Justia Criminal Law Center California Criminal Jury Instructions (CALCRIM) (2023) Tax Crimes CALCRIM No. 2825. Aiding in Preparation of False Tax Return (Rev. & Tax. Code, § 19705(a)(2))

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

Judicial Council of California Criminal Jury Instructions (2023 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);

[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

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[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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Page last reviewed May 2023