CALCRIM No. 2828. Failure to Withhold Tax (Rev. & Tax. Code, §§ 19708, 19709)
Judicial Council of California Criminal Jury Instructions (2023 edition)
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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] is not measured in terms
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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].
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
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.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Governmental Authority, § 138.
CALCRIM No. 2828 TAX CRIMES
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6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 140,
Challenges to Crimes, § 140.03 (Matthew Bender).
2829-2839. Reserved for Future Use
TAX CRIMES CALCRIM No. 2828
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© Judicial Council of California.
