CALCRIM No. 2826. Willful Failure to Pay Tax (Rev. & Tax. Code, § 19701(c))
Judicial Council of California Criminal Jury Instructions (2023 edition)
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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 ‘substantial’ . . .
is necessarily a relative term and not susceptible of an exact meaning.” (Canaday v.
690
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.
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).
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Governmental Authority, § 136.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, §§ 140.02[5], 140.03 (Matthew Bender).
TAX CRIMES CALCRIM No. 2826
691
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