California Criminal Jury Instructions (CALCRIM) (2017)

2828. Failure to Withhold Tax

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2828.Failure to Withhold Tax (Rev. & Tax. Code, §§ 19708, 19709)
The defendant is charged [in Count ] with intentionally failing to
(withhold/collect, or truthfully account for,) and pay (a/an) (tax/ [or]
amount required to be withheld) to the Franchise Tax Board [in
violation of <insert appropriate code section[s]>].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. Under state tax laws, the defendant was required to (withhold/
collect, or truthfully account for,) and pay (a/an) (tax/ [or]
amount required to be withheld) to the Franchise Tax Board;
2. The defendant did not do so;
AND
3. The defendant voluntarily chose not to do so, with intent to
violate a legal duty known to (him/her).
[The People do not have to prove the exact amount owed. The People
must prove beyond a reasonable doubt that the amount the defendant
failed to (withhold/collect, or truthfully account for,) and pay to the
Franchise Tax Board was substantial.]
New January 2006
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give this instruction defining the elements of
the crime.
If the defendant is charged with a violation of Revenue and Taxation Code section
19709, give the option “withhold” in the introduction, element 1, and the last
bracketed paragraph. If the defendant is charged with a violation of Revenue and
Taxation Code section 19708, give the option “collect or truthfully account for.”
See Commentary below on the use of the term “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. United States (8th Cir. 1966) 354 F.2d 849, 852–853.) “[It]
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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, §§ 19708, 19709.
Violation of Section 19709 Must Be Willful. People v. Singer (1980) 115
Cal.App.3d Supp. 7, 10 [171 Cal.Rptr. 587].
• 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.
• Need Not Prove Exact Amount. United States v. Wilson (3d Cir. 1979) 601
F.2d 95, 99; United States v. Johnson (1943) 319 U.S. 503, 517–518 [63 S.Ct.
1233, 87 L.Ed. 1546].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes Against
Governmental Authority, § 129.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.03 (Matthew Bender).
COMMENTARY
Element 3 contains the definition of “willful” violation of a tax law derived from
People v. Hagen (1998) 19 Cal.4th 652, 659–660 [80 Cal.Rptr.2d 24, 967 P.2d
563], and United States v. Bishop (1973) 412 U.S. 346, 360–361 [93 S.Ct. 2008, 36
L.Ed.2d 941]. Revenue and Taxation Code section 19708 specifically requires that
the defendant’s act be willful, but section 19709 does not explicitly include the
element of willfulness. In People v. Singer (1980) 115 Cal.App.3d Supp. 7, 10 [171
Cal.Rptr. 587], the court construed section 19709 as also requiring a willful
CALCRIM No. 2828 TAX CRIMES
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violation. Although it is unclear, it appears that based on this ruling, the Hagen-
Bishop definition of willful also applies to a violation of section 19709.
2829–2839. Reserved for Future Use
TAX CRIMES CALCRIM No. 2828
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