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F 7.96 n1 Reliance On Advice Of Tax Counsel: Term “Defense” Should Be Deleted.
The term “defense” should be deleted from CJ 7.96. This term suggests that there is a burden on the defendant which may mislead the jury. (See generally FORECITE PG V(D)(2) [Sanitizing The Instructions: Descriptive Titles].)
F 7.96a
Reliance On Advice Of Tax Counsel:
Burden On Prosecution To Disprove Beyond A Reasonable Doubt
*Add to CJ 7.96 as follows:
The defendant in this case has introduced evidence for the purpose of showing that [he] [she] did not voluntarily and intentionally violate a duty which [he] [she] knew to be imposed by law but relied on the advice given by _______(tax counsel, etc.) in preparing [his] [her] tax return. If after a consideration of all the evidence, including any advice defendant received from tax counsel, you have a reasonable doubt that [he] [she] possessed the required knowledge and intent to violate a duty imposed by law you must find [him] [her] not guilty.
Points and Authorities
CJ 7.96 entitled “Defense of Reliance On Advice” instructs the jury regarding evidence that the defendant relied on the advice of tax counsel. The instruction provides, inter alia, that: “The burden is on the defendant to raise a reasonable doubt of his guilt of the crime charged because of reliance on advice of [tax counsel] [an accountant].”
This instruction is erroneous. Evidence of reliance on the advice of tax counsel serves to directly negate an element of the offense, e.g., the intent to violate a known legal duty. In other words, the fact that tax counsel advised that the defendant’s tax return was legal is evidence from which the jury may reasonably infer that the defendant did not intentionally violate the tax code. Hence, it is manifestly incorrect to characterize such evidence as a “defense” as to which the defendant bears any burden. (See People v. Wright (88) 45 C3d 1126, 1136-37 [248 CR 600] [approving CJ 2.91 and CJ 4.50 — which require acquittal if there is a reasonable doubt as to the defense; see also People v. Simon (95) 9 C4th 493, 500-01 [37 CR2d 278]; People v. Tewksbury (76) 15 C3d 953, 963-64, fn 9 [127 CR 135].)
Instruction on this evidence should be in a form similar to other defense theory or pinpoint instructions as with the instruction above, which impose the burden on the prosecution to disprove the negating inference beyond a reasonable doubt. (See e.g., CJ 4.50 [alibi] CJ 5.15 [self-defense].)
Additionally, the term “defense” should be deleted from the title of CJ 7.96. (See FORECITE PG V(D)(2).)
