CALCRIM No. 2861. Defense: Reliance on Professional Advice

Judicial Council of California Criminal Jury Instructions (2023 edition)

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2861.Defense: Reliance on Professional Advice
The defendant did not voluntarily and intentionally violate a legal duty
known to (him/her) if, (in preparing (his/her) (tax return[,]/ [or]
statement[,]/ [or other] document[s] filed with the Franchise Tax Board)/
[or] failing to file a tax return), (he/she) relied in good faith on the
advice of <insert name of person allegedly relied on>, who
represented (himself/herself) to be (a/an) (accountant/attorney/
<insert other professional>) qualified to provide such advice.
The defendant did not rely on the advice in good faith if:
1. The defendant did not give <insert name of person
allegedly relied on> all the information about the defendant’s
income and expenses for the year(;/.)
AND
<Alternative 2A - defendant charged with filing false or inaccurate
document>
[2A. When the defendant submitted the (tax return[,]/ [or]
statement[,]/ [or other] document) to the Franchise Tax Board,
(he/she) knew or had reason to believe that the information
contained in the document was incorrect or false.]
[OR]
<Alternative 2B - defendant charged with failing to file>
[(2B). When the defendant chose not to file a tax return based on
’s <insert name of person allegedly relied on> advice,
(he/she) knew or had reason to believe that the advice was
incorrect or false.]
The People have the burden of proving beyond a reasonable doubt that
the defendant did not rely in good faith on the advice of
<insert name of person allegedly relied on>. If the People have not met
this burden, you must find the defendant not guilty of the crime[s]
charged [in Count[s] ] [or the lesser offense[s] of
<insert description of lesser offense[s]>].
New January 2006
BENCH NOTES
Instructional Duty
The defendant may assert as a defense good faith reliance on the advice of a
professional. (United States v. Segal (8th Cir. 1988) 867 F.2d 1173, 1179; United
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States v. Mitchell (4th Cir. 1974) 495 F.2d 285, 287-288; see Federal Jury Practice
and Instructions, Criminal (5th ed.) § 67.25.) “[T]he defendant must show he
actually relied on expert advice and that his reliance was in good faith.” (United
States v. Segal, supra, 867 F.2d at p. 1179.) Further, this defense is not available if
the defendant failed to provide the professional with all of the relevant information
or knew that the document was false or inaccurate when submitted. (United States v.
Claiborne (9th Cir. 1985) 765 F.2d 784, 798; see also United States v. Segal, supra,
867 F.2d at p. 1179 [defendant, charged with failing to file tax return, knew advice
was inaccurate].) If there is sufficient evidence to raise a reasonable doubt that the
defendant relied on professional advice, the court has a sua sponte duty to give this
instruction.
Give alternative A if the defendant is charged with filing a false tax return or
document. Give alternative B if the defendant is charged with failing to file a tax
return. The court may give both alternatives if appropriate based on the evidence.
AUTHORITY
• Reliance on Advice Defense. United States v. Mitchell (4th Cir. 1974) 495 F.2d
285, 287-288; United States v. Platt (2d Cir. 1970) 435 F.2d 789, 792-793;
Bursten v. United States (5th Cir. 1968) 395 F.2d 976, 981; United States v.
Duncan (6th Cir. 1988) 850 F.2d 1104, 1117, disapproved on other grounds by
Schad v. Arizona (1991) 501 U.S. 624, 634-635 [111 S.Ct. 2491, 115 L.Ed.2d
555]; United States v. Phillips (7th Cir. 1954) 217 F.2d 435, 440; United States
v. Claiborne (9th Cir. 1985) 765 F.2d 784, 798; see also Federal Jury Practice
and Instructions, Criminal (5th ed.) § 67.25.
• Reliance Must Be Actual and in Good Faith. United States v. Segal (8th Cir.
1988) 867 F.2d 1173, 1179; United States v. Duncan (6th Cir. 1988) 850 F.2d
1104, 1116.
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Governmental Authority, § 137.
2862-2899. Reserved for Future Use
CALCRIM No. 2861 TAX CRIMES
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