‘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
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.
• 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.
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, 140.03 (Matthew Bender).
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