California Criminal Jury Instructions (CALCRIM) (2017)

2826. Willful Failure to Pay Tax

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2826.Willful Failure to Pay Tax (Rev. & Tax. Code, § 19701(c))
The defendant is charged [in Count ] with intentionally failing to
pay a required (tax/estimated tax) to the Franchise Tax Board [in
violation of Revenue and Taxation Code section 19701(c)].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant was required to pay a (tax/estimated tax) to the
Franchise Tax Board;
2. The defendant failed to pay the (tax/estimated tax) by the date it
was due;
AND
3. The defendant voluntarily chose not to pay, with intent to violate
a legal duty known to (him/her).
[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 a substantial
amount of income/ [or] owed a substantial amount in [additional]
taxes).]
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,
§ 19701(c).) 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.) Federal
cases have held that when intent to evade is an element of the offense, the
prosecution must show that the amount owed in taxes or the amount of unreported
income was substantial. (United States v. Wilson, supra, 601 F.2d at p. 99; see also
Federal Jury Practice and Instructions, Criminal (5th ed.) § 67.08.) “The word
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‘substantial’ . . . is necessarily a relative term and not susceptible of an exact
meaning.” (Canaday v. United States (8th Cir. 1966) 354 F.2d 849, 852–853.) “[It]
is not measured in terms of gross or net income nor by any particular percentage of
the tax shown to be due and payable. All the attendant circumstances must be taken
into consideration.” (United States v. Nunan (2d Cir. 1956) 236 F.2d 576, 585, cert.
den. (1957) 353 U.S. 912.) “Whether the tax evaded was ‘substantial’ is, therefore,
a jury question . . . .” (Federal Jury Practice and Instructions, Criminal (5th ed.)
§ 67.08 [see also § 67.03, noting that “substantial” is generally not defined for the
jury].)
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, § 19701(c).
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.
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
Governmental Authority, § 127.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, §§ 140.02[5], 140.03 (Matthew Bender).
COMMENTARY
Revenue and Taxation Code section 19701(c) provides that a person who willfully
fails to pay any estimated tax or tax that the person is required to pay is guilty of a
misdemeanor and shall upon conviction be fined not to exceed five thousand dollars
or be imprisoned not to exceed one year, or both, at the discretion of the court,
together with costs of investigation and prosecution. However, subdivision (c) also
provides that the preceding sentence “shall not apply to any person who is mentally
incompetent, or suffers from dementia, Alzheimer’s disease, or similar condition.”
Rev. & Tax. Code, § 19701(c).
TAX CRIMES CALCRIM No. 2826
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