7th CIRCUIT FEDERAL INSTRUCTIONS 1999
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Title 26 Offenses (26 USC 5845 - 26 USC 7212)
01
Definition Of Make (26 USC 5845)
02 Definition Of
Transfer (26 USC 5845)
03 Definition Of
Dealer (26 USC 5845)
04 Machine Guns,
Destructive Devices, And Certain Other Firearms Definition Of Importer (26 USC
5845)
05 Definition Of
Manufacturer (26 USC 5845)
06 Failure To Pay
Tax Or Register--Elements (26 USC 5861)
07 Receiving Or
Possessing An Unregistered Firearm--Elements (26 USC 5861)
08 Other Prohibited
Acts (26 USC 5861)
09 Attempt To Evade
Or Defeat Tax – Elements (26 USC 7201)
10 Definition Of
Willfully (26 USC 7201)
11 Date Tax Is Due
And Owing (26 USC 7201)
12 No Need For Tax
Assessment (26 USC 7201)
13 Failure To File
Does Not Constitute Evasion (26 USC 7201)
14 Unanimity As To
Acts Charged (26 USC 7201)
15 Failure To
File--Elements (26 USC 7203)
16 Gross
Income--Definition (26 USC 7203)
17 Exact Amount Due
Not Required (26 USC 7203)
18 When Person Is
Obligated To File Return (26 USC 7203)
19 When Entity Is
Obligated To File Return (26 USC 7203)
20 Definition Of
Willfully (26 USC 7203)
21 Fraud And False
Statements--Elements (26 USC 7206(1))
22 Definition Of
Willfully (26 USC 7206)
23 Materiality (26
USC 7206)
24 Corruptly
Endeavoring To Obstruct Or Impede Due Administration Of Laws--Elements (26 USC
7212)
25 Definition Of
Due Administration Of Laws (26 USC 7212)
26
Endeavor--Definition (26 USC 7212)
27
Corruptly--Definition (26 USC 7212)
28 Good Faith (26
USC 7212)
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[01] Definition of Make
(26 USC 5845)
FORECITE National™ Materials Related To This Instruction:
See FORECITE National™ Federal Models By Offense: Definition Of Make (26 USC 5845)
The term make includes manufacturing (other than by one qualified to engage in such business), putting together, altering, any combination of these, or otherwise producing a firearm.
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[02] Definition of Transfer
(26 USC 5845)
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See FORECITE National™ Federal Models By Offense: Definition Of Make (26 USC 5845)
The term transfer includes selling, assigning, pledging, leasing, loaning, giving away, or otherwise disposing of.
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[03] Definition of Dealer
(26 USC 5845)
FORECITE National™ Materials Related To This Instruction:
See FORECITE National™ Federal Models By Offense: Definition Of Make (26 USC 5845)
The term dealer means any person, not a manufacturer or importer, engaged in the business of selling, renting, leasing, or loaning firearms.
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[04] Machine Guns, Destructive Devices, and Certain Other Firearms Definition of Importer
(26 USC 5845)
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See FORECITE National™ Federal Models By Offense: Definition Of Make (26 USC 5845)
The term "importer" means any person who is engaged in the business of importing or bringing firearms into the United States.
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[05] Definition of Manufacturer
(26 USC 5845)
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See FORECITE National™ Federal Models By Offense: Definition Of Make (26 USC 5845)
The term "manufacturer" means any person who is engaged in the business of manufacturing firearms.
Committee Comment
The terms "firearm," "machine gun," "rifle," "shotgun," "any other weapon," "destructive device," "antique firearm," and "unserviceable firearm" are statutorily defined. Definitions of those terms for the jury should, if necessary, be taken from the statute.
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[06] Failure to Pay Tax or Register--Elements
(26 USC 5861)
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See FORECITE National™ Federal Models By Offense: Failure To Pay Tax Or Register--Elements (26 USC 5861)
To sustain the charge of engaging in business as a [manufacturer of; importer of; dealer in] firearms [without having paid the special tax; without having registered] as required by law, the government must prove the following propositions:
First, the defendant was engaged in business as a [manufacturer of; importer of; dealer in] firearms; and,
Second, the defendant engaged in the business [without having first paid the special tax; without having registered] as required by law.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that either of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.
Committee Comment
Instructions on the mechanics of paying the tax (§ 5801) and registering (§ 5802) are not included as the need to use them appears to be remote.
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[07] Receiving or Possessing an Unregistered Firearm--Elements
(26 USC 5861)
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See FORECITE National™ Federal Models By Offense:
Failure To Pay Tax Or Register--Elements (26 USC 5861)To sustain the charge of [receiving; possessing] a firearm which is not registered in the National Firearms Registration and Transfer Record the government must prove the following propositions:
First, the defendant knowingly [received; possessed] a firearm; and,
Second, the defendant knew that the firearm possessed the characteristic[s] of [list characteristics].
Third, the firearm was not registered in the National Firearms Registration and Transfer Record.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that either of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.
Committee Comment
In the second element, the court must provide a list of all the characteristics in the appropriate statutory definition of the particular firearm or firearms which are the subject of the prosecution. These definitions are found at 26 USC 5845. Staples v. United States, 511 U.S. 600 (1994), United States v. Meadows, 91 F.3d 851 (7th Cir. 1996).
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[08] Other Prohibited Acts
(26 USC 5861)
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See FORECITE National™ Federal Models By Offense: Failure To Pay Tax Or Register--Elements (26 USC 5861)
Committee Comment
Title 26 U.S.C. 5861 lists twelve separate acts prohibited by the National Firearms Act. Because most of the acts are specific, and the foreseeable charges are so numerous and individualistic, the Committee believes that the balance of the statute should not be the subject of pattern instructions.
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[09] Attempt to Evade or Defeat Tax–Elements
(26 USC 7201)
FORECITE National™ Materials Related To This Instruction:
See FORECITE National™ Federal Models By Offense: Income Tax Evasion (26 USC 7201)
.To sustain a charge of attempting to evade or defeat the defendant's individual tax, the government must prove the following propositions:
First, on April 15 [or date of a legal extension] of the year following the tax year, federal income tax was due and owing by the defendant;
Second, the defendant intended to evade or defeat the ascertainment, assessment, computation or payment of the tax; and
Third, the defendant willfully did some act in furtherance of the intent to evade tax or payment of the tax.
If you find from your consideration or of all of the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty
Committee Comment
See Sansone v. United States, 380 U.S. 343, 351 (1965); United States v. Marabelles, 724 F.2d 1374, 1380 (9th Cir.1984); United States v. Dwoskin, 644 F.2d 418, 419 (5th Cir.1981); United States v. Grasso, 629 F.2d 805, 807 (2d Cir.1980). This section includes both attempts to avoid payment of taxes and attempts to avoid assessment of taxes. United States v. Voorhies, 658 F.2d 710, 713 (9th Cir.1981).
If the government uses a "net worth" theory to prove underpayment of taxes, then the government must prove that the increase in the defendant's net worth, added to his nondeductible expenditures and excluding his known nontaxable receipts, exceeded his reported taxable income by a substantial amount. See United States v. Sorrentino, 726 F.2d 876, 879 (1st Cir.1984). This added burden of proof is imposed under the net worth theory because that method of proof is "fraught with danger for the innocent ...." Holland v. United States, 348 U.S. 121, 125 (1954). Accordingly, the Committee recommends that the phrase "substantial tax" be inserted into the first element in place of the word "tax" when the government employs a net worth theory of proof in a prosecution under Section 7201.
Where specific acts of evasion are charged, the court should consider whether to give a unanimity instruction (See Instruction for 26 U.S.C. 7201 (Unanimity as to Acts Charged) infra and Instruction No. 4.03).
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[10] Definition of Willfully
(26 USC 7201)
FORECITE National™ Materials Related To This Instruction:
See FORECITE National™ Federal Models By Offense: Income Tax Evasion (26 USC 7201)
The term "willfully" means the voluntary and intentional violation of a known legal duty, in other words, acting with the specific intent to avoid paying a tax imposed by the income tax laws or to avoid assessment of a tax that it was the legal duty of the defendant to pay to the government, and that the defendant knew it was his/her legal duty to pay.
Committee Comment
"Willfulness" is "any conduct, the likely effect of which would be to mislead or conceal." Spies v. United States, 317 U.S. 492, 499 (1943); United States v. Voorhies, 658 F.2d 710, 715 (9th Cir.1981). "Willfulness" may be inferred from concealment of assets or covering up sources of information, or handling one's affairs to avoid making the records usually generated by a particular transaction. United States v. Kaatz, 705 F.2d 1237, 1246 (10th Cir.1983); United States v. Scott, 660 F.2d 1145, 1160 (7th Cir.1981), cert. denied, 455 U.S. 907 (1982).
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[11] Date Tax is Due and Owing
(26 USC 7201)
FORECITE National™ Materials Related To This Instruction:
See FORECITE National™ Federal Models By Offense: Income Tax Evasion (26 USC 7201)
If you find beyond a reasonable doubt that the defendant had a tax liability for a particular year, then I instruct you as a matter of law, that tax was due and owing on April 15 [or other date set by law or legal extension] of the following year.
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[12] No Need for Tax Assessment
(26 USC 7201)
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See FORECITE National™ Federal Models By Offense: Income Tax Evasion (26 USC 7201)
If the defendant has incurred a tax liability, it exists from the date the return is due. A taxpayer's tax liability exists independent of any administrative assessment. It is not necessary that a taxpayer receive a tax assessment before he is charged with a criminal violation of willful attempt to evade or defeat income tax.
Committee Comment
This instruction should be given only if the contrary position is argued by the defendant.
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[13] Failure to File Does Not Constitute Evasion
(26 USC 7201)
FORECITE National™ Materials Related To This Instruction:
See FORECITE National™ Federal Models By Offense: Income Tax Evasion (26 USC 7201)
Failure to file a tax return, without any additional act, does not establish the crime of willful attempt to evade or defeat income tax.
Committee Comment
See Spies v. United States, 317 U.S. 492, 499 (1943).
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[14] Unanimity As To Acts Charged
(26 USC 7201)
FORECITE National™ Materials Related To This Instruction:
See FORECITE National™ Federal Models By Offense: Income Tax Evasion (26 USC 7201)
Committee Comment
The committee suggests reference to Instruction 4.03, supra, regarding this issue.
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[15] Failure to File--Elements
(26 USC 7203)
FORECITE National™ Materials Related To This Instruction:
See FORECITE National™ Federal Models By Offense: Failure To File A Tax Return (26 USC 7203)
To sustain the charge of willful failure to file an [individual, partnership, corporate, trust] income [or other] tax return, the government must prove the following propositions:
First, the defendant was a person required by law to file an [individual, partnership, corporate, trust, or other] income [or other] tax return for [calendar or fiscal year in question];
Second, the defendant failed to file the return as required by law; and
Third, the defendant acted willfully.
If you find from your consideration of all the evidence as to a particular count that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty of that count.
If, on the other hand, you find from your consideration of all the evidence as to a particular count that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty of that count.
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[16] Gross Income--Definition
(26 USC 7203)
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See FORECITE National™ Federal Models By Offense: Failure To File A Tax Return (26 USC 7203)
"Gross income" means all income from whatever source derived, including [wages and compensation for services, tips, compensation in the form of personal expenses paid for by defendant’s corporation, income from fraud, embezzlement, etc.]
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[17] Exact Amount Due Not Required
(26 USC 7203)
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See FORECITE National™ Federal Models By Offense: Failure To File A Tax Return (26 USC 7203)
The government must prove that the defendant's gross income [or net income from business] exceeded the statutory amount creating the obligation to file a return. The government is not required to prove the exact amount of gross income [or net income from business] alleged in the indictment.
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[18] When Person is Obligated to File Return
(26 USC 7203)
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See FORECITE National™ Federal Models By Offense: Failure To File A Tax Return (26 USC 7203)
A [single individual, married individual filing separately, etc.] [under] [over] 65 years old was required to make and file an individual income tax return if that individual had a gross income of $____ or more.
A married individual was required to file a federal income tax return if he/she had a separate gross income in excess of $______ and a total gross income, when combined with that of his/her spouse, in excess of $_____ where [either] [both] [is] [are] [over] [under] 65 years old.
Any person who received more than $____ net income from business (Schedule C), was required to make and file an individual income tax return.
Committee Comment
This instruction should be adapted for particular years, as filing requirements change.
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[19] When Entity is Obligated to File Return
(26 USC 7203)
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See FORECITE National™ Federal Models By Offense: Failure To File A Tax Return (26 USC 7203)
I instruct you, as a matter of law, that for the years ____, a corporation [partnership, trust] was required to make and file a corporate [partnership, trust] income tax return, whether or not that corporation had income.
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[20] Definition of Willfully
(26 USC 7203)
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See FORECITE National™ Federal Models By Offense: Failure To File A Tax Return (26 USC 7203)
The word "willfully" means the voluntary and intentional violation of a known legal duty or the purposeful omission to do what the law requires. The defendant acted willfully if he/she was required by law to file an income tax return and intentionally failed to do so.
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[21] Fraud and False Statements--Elements
(26 USC 7206(1))
FORECITE National™ Materials Related To This Instruction:
See FORECITE National™ Federal Models By Offense: False Statements On Income Tax Return (26 USC 7206(1))
To sustain the charge that the defendant willfully made [and caused to be made] a false individual [corporate, partnership, trust] income tax return, the government must prove the following proposition:
First, the defendant made [or caused to be made] the income tax return;
Second, the defendant signed the income tax return, which contained a written declaration that it was made under penalties of perjury;
Third, the defendant filed the income tax return [or caused the income tax return to be filed] with the Internal Revenue Service;
Fourth, the income tax return was false as to a material matter, as charged in the count; and
Fifth, when the defendant made and signed the tax return, the defendant did so willfully and did not believe that the tax return was true, correct and complete as to every material matter.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt as to the particular count, then you should find the defendant guilty of the particular count.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt as to the particular count, then you should find the defendant not guilty of that particular count.
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[22] Definition of Willfully
(26 USC 7206)
FORECITE National™ Materials Related To This Instruction:
See FORECITE National™ Federal Models By Offense: False Statements On Income Tax Return (26 USC 7206(1))
The word willfully means the voluntary and intentional violation of a known legal duty or the purposeful omission to do what the law requires. The defendant acted willfully if he/she knew it was his/her legal duty to file truthful [individual, corporate, partnership, trust] tax returns, and intentionally filed [a] false return[s].
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[23] Materiality
(26 USC 7206)
FORECITE National™ Materials Related To This Instruction:
See FORECITE National™ Federal Models By Offense: False Statements On Income Tax Return (26 USC 7206(1))
A line on a tax return is a material matter if the information required to be reported on that line is capable of influencing the correct computation of the amount of tax liability of the individual [corporation] or the verification of the accuracy of the return.
[If you find that the defendant willfully understated the amount of gross income [gross receipts of the corporation, partnership, trust etc.] on his/her individual [corporate, partnership, trust, etc.] tax return, or that the defendant willfully overstated the amount of deductions he/she was entitled to claim at any of the specified lines of his/her individual [corporate, partnership, trust] return, and if you find that the amount of gross receipts or the amount of deductions claimed on a tax return is essential to a correct computation of the amount of taxable income or tax or to the verification of that return, then you may find that the false and fraudulent statements were false as to a material matter.]
OR
A false matter is material if the matter was capable of influencing the Internal Revenue Service.
Committee Comment
The general definition is from United States v. Gaudin, 515 U.S. 506, 510 (1995), which was a case involving 18 USC 1001. There is law suggesting that under § 7206, the test for materiality is whether the information required to be reported on the particular line of the return is essential to a correct computation and reporting of taxable income and tax liability. The Committee takes no position on whether this is required. For this reason, two alternative definitions are provided.
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[24] Corruptly Endeavoring to Obstruct or Impede Due Administration of Laws--Elements
(26 USC 7212)
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See FORECITE National™ Federal Models By Offense: Corruptly Endeavoring To Obstruct Or Impede Due Administration Of Laws--Elements (26 USC 7212)
To sustain the charge of corruptly endeavoring to obstruct or impede the due administration of the internal revenue laws, the government must prove the following propositions:
First, the defendant corruptly endeavored to obstruct or impede the due administration of the internal revenue laws;
Second, that the defendant did so knowingly and intentionally.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty of that count.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty of that count.
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[25] Definition of Due Administration of Laws
(26 USC 7212)
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See FORECITE National™ Federal Models By Offense: Corruptly Endeavoring To Obstruct Or Impede Due Administration Of Laws--Elements (26 USC 7212)
The phrase "due administration of the internal revenue laws" includes the Internal Revenue Service of the Department of the Treasury carrying out its lawful functions in the ascertaining of income; the computing, assessing and collecting of income taxes; the auditing of tax returns and records; and the investigation of possible criminal violations of the internal revenue laws, such as the filing of false or fraudulent individual [corporate, partnership, trust] income tax returns.
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[26] Endeavor--Definition
(26 USC 7212)
FORECITE National™ Materials Related To This Instruction:
See FORECITE National™ Federal Models By Offense: Corruptly Endeavoring To Obstruct Or Impede Due Administration Of Laws--Elements (26 USC 7212)
The term "endeavor" describes any effort or act to obstruct or impede the due administration of the internal revenue laws. The endeavor need not be successful, but it must have at least a reasonable tendency to obstruct or impede the due administration of the internal revenue laws.
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[27] Corruptly--Definition
(26 USC 7212)
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See FORECITE National™ Federal Models By Offense: Corruptly Endeavoring To Obstruct Or Impede Due Administration Of Laws--Elements (26 USC 7212)
The word "corruptly" means that the act or acts were done with the purpose to secure an unlawful benefit for oneself or another by obstructing or impeding the administration of the internal revenue laws.
Committee Comment
This definition is derived from United States v. Popkin, 943 F. 2d 1535, 1539-40 (11th Cir. 1991), and United States v. Reeves, 752 F.2d 995, 998 (5th Cir.), cert. denied, 474 U.S. 834 (1985). See United States v. Valenti,121 F.3d 327 (7th Cir.1997), citing with approval United States v. Hanson, 2 F.3d 942, 946-47 (9th Cir.1993) (employing a similar definition).
7th CIRCUIT FEDERAL INSTRUCTIONS 1999
[28] Good Faith
(26 U.S.C. 7212)
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See FORECITE National™ Federal Models By Offense: Corruptly Endeavoring To Obstruct Or Impede Due Administration Of Laws--Elements (26 USC 7212)
A defendant does not act willfully if he/she believes in good faith that he/she is acting within the law, or that his/her actions comply with the law. Therefore, if the defendant actually believed that what he/she was doing was in accord with the tax statutes, he/she cannot be said to have had the criminal intent to impede or obstruct the administration of the internal revenue laws. This is so even if the defendant's belief was not objectively reasonable, as long as he/she held the belief in good faith. However, you may consider the reasonableness of the defendant's belief together with all the other evidence in the case in determining whether the defendant held the belief in good faith.
Committee Comment
See Cheek v. United States,498 U.S. 192, 202, 204-206 (1991); United States v. Becker, 965 F.2d 383 (7th Cir.1992).