Return to CALJIC Part 5-8 – Contents
F 7.61 n1 Tax Evasion: Willful Failure To File Tax Return With Intent To Evade Taxes.
In People v. Hagen (98) 19 C4th 652, 666 [80 CR2d 24] the court concluded that willfulness, as an element of RT 19705(a)(1) [filing false/fraudulent return] [former RT 19405(a)(1)] requires the prosecution to prove that the perjurious statement was made in voluntary, intentional violation of a known legal duty.
Revenue and Taxation Code 19706 (RT 19706 [filing false/fraudulent return — felony [former RT 19406]) has been consistently interpreted to require proof of intent to evade taxes where the individual has failed to file a return. The intent factor clearly is included in the felony statute, i.e., RT 19706, by the language therein which refers to a “person who ‘willfully fails to file’ a return ‘with intent to evade any tax imposed.’” (People v. Kuhn (63) 216 CA2d 695, 697 [31 CR 253].) “Intent to evade is an element of the offense ….” (People v. Roper (83) 144 CA3d 1033, 1038 [193 CR 15].)
NOTE: Failure to file a tax return/filing false return -misdemeanor (RT 19701 [former RT 19401]) defines a strict liability offense with but a single element: the individual must have failed to file a return. (RT 19401; People v. Jones (83) 149 CA3d Supp 41, 47 [197 CR 533].) Thus, RT 19401 is a lesser included offense of RT 19406. (See People v. Hagen (98) 19 C4th 652, 669 [80 CR2d 24]; People v. Smith (84) 155 CA3d 1103, 1182-85 [203 CR 196].) [Additional briefing on this issue is available to FORECITE subscribers. Ask for Brief Bank # B-557.]
F 7.61 n2 Tax Evasion: Failure To File Tax Return.
It has been suggested that Revenue and Taxation Code 19701 (RT 19701 [former RT 19401]), failure to file a tax return (compare RT 19706 [former RT 19406]: willful failure), defines a strict liability offense with but a single element: the individual must have failed to file a return. (People v. Jones (83) 149 CA3d Supp 41, 47 [197 CR 273].) However, State v. Averyt (94) 876 P2d 1158 [179 Ariz 123] held that jury instructions given at the defendants’ trial for failure to file a state income tax return were defective because they permitted conviction in absence of proof that defendants knew they had a duty to file a state tax return and knowingly violated that duty. According to the Arizona court, due process, as interpreted in Lambert v. California (57) 355 US 225,____ [2 LEd2d 228, 232; 78 SCt 240] required the prosecution to prove that the defendants knew they had a statutory duty to file the tax return. Moreover, Cheek v. U.S. (91) 498 US 192 [112 LEd2d 617, 630-33; 111 SCt 604] gives the defendant a due process right to present evidence in support of a claim that they did not know of the duty to file.
It is true that the California statute specifically calls for liability “with or without” intent to evade the law. However, knowledge of the duty to file is a different question than the intent to evade taxes. In other words, because the statute does not expressly state that no knowledge of the duty to file is required, the existence of such a requirement may be found under the above authority.
(See also FORECITE F 18.19 n1.)
F 7.61a
Tax Evasion: Knowledge And Intent Elements
*Delete 5th Element of CJ 7.61 and replace with the following:
The law imposed a duty on the defendant, the defendant knew of this duty and voluntarily and intentionally violated that duty.
Points and Authorities
Several of CALJIC’s new instructions incorporate the knowledge and intent elements of People v. Hagen (98) 19 C4th 652 [80 CR2d 24] as follows: “The person made the false or inaccurate statement[s] in a voluntary, intentional violation of a known legal duty.”
However, this language does not convey that the duty must be known to the defendant. It merely states that the jury must be “known” without specifying by whom. Accordingly, the CJ language should be replaced with the above instruction which is updated from Cheek v. U.S. (91) 498 US 192, 201 [112 LEd2d 617; 111 SCt 604]. Hagen expressly relied on this language from Cheek. (Hagen, 19 C4th at 660.)