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VOLUME 7 - CHAPTER 98
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98.3 Tax Evasion

    98.3.2 Tax Evasion: Miscellaneous Issues

    98.3.2.1 Failure To File Tax Return Must Be Willful
    98.3.2.2 Tax Violation: Right to Specific Instruction On Defendant’s Theory

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VOLUME 7 - CHAPTER 98

PRACTICE NOTE: The due process clause of the federal constitution, as construed in Lambert v. California (1957) 355 US 225, 229 [78 SCt 240; 2 LEd2d 228], has been held to require the prosecution to prove that the defendants knew they had a statutory duty to file the tax return. (See U.S. v. Pomponio (1976) 429 US 10, 12 [97 SCt 22; 50 LEd2d 12] ["willful" must be defined as "voluntary, intentional violation of a known legal duty"]; U.S. v. Doyle (5th Cir. 1992) 956 F2d 73, 76 [defendant entitled to instruction on lesser-included offense of misdemeanor failing to make return, where defendant testified that he did not willfully falsify W-4 forms and that he believed in good faith, albeit incorrectly, that his income was exempt from withholding]; State v. Avery (AZ 1994) 876 P2d 1158, 1164; see also; State v. Osborn (IA 1985) 368 NW2d 68, 70 [willfulness was established by proof of a voluntary and intentional violation of a known legal duty]; Dover v. Baker, Brown, Sharman & Parker (TX 1993) 859 SW2d 441, 448 ["willfully" as used in federal tax evasion statute means voluntary, intentional violation of known duty, and it is improper to charge taxpayer with knowledge based solely on fact that he signed return]; State v. Olexa (WI 1987) 402 NW2d 733, 737.)

    See also FORECITE National™ 98.3.3.3 [Failure To File A Tax Return: Lack Of Intent To Violate A Known Duty As Defense Theory].

See FORECITE National™ 98.3.1.2 [Tax Evasion: Federal Circuit Model Instructions And Notes].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
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 VOLUME 7 - CHAPTER 98

PRACTICE NOTE: See U.S. v. Regan (2nd Cir. 1991) 937 F2d 823, 826 [trial court failed to identify the specific tax code section upon which the defendant’s good-faith defense was predicated].

    See also FORECITE National™ Chapter 250 [Defenses And Defense Theories: General Issues].

See generally, FORECITE National™ 305.20.2 [Tax Evasion].

See FORECITE National™ 98.3.1.2 [Tax Evasion: Federal Circuit Model Instructions And Notes].