Wednesday, October 1, 2008

Section 7201 - willful failure to file tax returns

United States of America, Plaintiff-Appellee, v. Robert Lee Cavins, Jr., Defendant-Appellant.

U.S. Court of Appeals, 8th Circuit; 07-3343, September 23, 2008.

Affirming an unreported DC Mo. decision.

[ Code Sec. 7201]

Tax crimes: Willful evasion: Indictment: Sufficiency: Jury instructions: Failure to file returns: Evidence: Fifth Amendment. --
An individual was properly convicted of willfully attempting to evade and defeat payment of federal income taxes. The indictment sufficiently alleged the willfulness element and fairly informed him of the charges by alleging specific affirmative acts of evasion and attempted evasion. The trial court correctly instructed the jury that the individual acted willfully if he knew he had a legal duty to pay federal income tax and acted intentionally to avoid paying the tax. The government was not required to show that he knew which specific provision created that duty. The individual did timely not object to the jury instruction or argue that the evidence was insufficient to convict him of willfully evading tax liabilities. The IRS forms clearly displayed an OMB control number and did not violate the Paperwork Reduction Act. Finally, admission of evidence that the individual did not file income tax returns did not violate the individual's Fifth Amendment privilege against self-incrimination because the Fifth Amendment does not authorize an individual to refuse to file a return.

Before: Loken, Chief Judge, Bye and Colloton, Circuit Judges.

LOKEN, Chief Judge: Robert Lee Cavins, Jr., a chiropractor, neither filed returns nor paid federal income taxes for the 1992-1994 tax years, except for estimated tax payments of $10,000 during 1992. Cavins and his wife also transferred their home and his office to residential and chiropractic trusts, and Cavins instructed his employees to deposit chiropractic revenues into various trust accounts. When Cavins sold his practice in 1999, he deposited $80,000 of the proceeds in an overseas bank. The Internal Revenue Service assessed nearly $130,000 in tax liabilities and filed a notice of federal tax lien, but the lien never attached to Cavins's property and the IRS went unpaid. Cavins was charged and after a jury trial convicted of willfully attempting to evade and defeat payment of federal income tax in violation of 26 U.S.C. § 7201 and 18 U.S.C. § 2. He appeals the conviction, arguing (i) that the indictment failed to charge and the government failed to prove a willful violation of § 7201; (ii) that the district court 1 erred in refusing to dismiss the indictment because the Form 1040 returns for the 1992-1994 tax years failed to comply with the Paperwork Reduction Act, 44 U.S.C. §§ 3501-3521 (2000); and (iii) that the admission of evidence that he failed to file income tax returns violated his Fifth Amendment rights. We affirm.


Cavins first argues, without citation to relevant authority, that the indictment should have been dismissed because its "mere allegation of willfulness without more was insufficient to give Cavins notice as to what he was required to defend against regarding this element." Without question, proof that the defendant "willfully" attempted to evade a federal tax is an element of the § 7201 offense. Sansone v. United States, 380 U.S. 343, 351 (1965). An indictment is sufficient if "it contains all of the essential elements of the offense charged, fairly informs the defendant of the charges against which he must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to a subsequent prosecution." United States v. Fleming, 8 F.3d 1264, 1265 (8th Cir. 1993). Here, the indictment alleged that Cavins
did willfully attempt to evade and defeat payment of a large part of his federal income tax due and owing ... by failing to file federal income tax returns for 1992, 1993 and 1994, placing and maintaining money or other property in the names of other persons and entities ... depositing payments received for services ... in the names of other persons and entities ... transferring money ... outside the United States, paying creditors other than the United States, using available assets to purchase investments rather than pay the ... federal income tax liabilities ... and engaging in other affirmative conduct the likely effect of which would be to mislead or to conceal with the intent to avoid payment of Defendant's federal income tax liabilities ... .

We agree with the district court that the indictment both alleged the willfulness element and fairly informed Cavins of the charges by alleging specific affirmative acts of evasion and attempted evasion. The motion to dismiss was properly denied. 2

At the end of this section of his brief, Cavins asserts that "no evidence supporting this element" was presented at trial. His reply brief makes clear the argument is based solely on dicta in the Supreme Court's opinion in Bryan v. United States 524 U.S. 184, 194 (1998): "In certain cases involving willful violations of the tax laws, we have concluded that the jury must find that the defendant was aware of the specific provision of the tax code that he was charged with violating." Cavins argues that his motion for judgment of acquittal should have been granted because the government introduced no evidence that he knew he was violating 26 U.S.C. § 7201.

This contention was not properly preserved. The district court instructed the jury that Cavins acted willfully "if he knew he had a legal duty to pay federal income tax" and acted intentionally to avoid paying the tax. He did not object to this instruction, nor does he argue that the evidence was insufficient to convict him of willfully evading his 1992-1994 tax liabilities under this definition of willfully.

Moreover, the instruction was clearly correct. In Cheek v. United States, 498 U.S. 192, 201 (1991), the Supreme Court held that the willfulness element in § 7201 "requires the Government to prove that the law imposed a duty on the defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty." In discussing a hypothetical, the Court clarified that willfulness in this context means that the defendant knew of the "duty purportedly imposed" by the tax laws, not that he knew which specific provision created that duty. Id. at 201-02. Neither the majority nor the dissenting opinion in Bryan --a case involving an entirely unrelated criminal statute --stated that the word "willfully" in any statute requires the government to prove knowledge of a specific statutory citation. As the Seventh Circuit observed in United States v. Patridge, 507 F.3d 1092, 1094 (7th Cir. 2007), cert. denied, 128 S. Ct. 1721 (2008), "Knowledge of the law's demands does not depend on knowing the citation any more than ability to watch a program on TV depends on knowing the frequency on which the signal is broadcast."


Cavins further argues that the district court erred in denying his motion to dismiss and in admitting evidence that he did not file Form 1040 tax returns for the 1992-1994 tax years because the forms violated the Paperwork Reduction Act. As we understand these contentions, 3 Cavins makes two distinct arguments. First, he argues that he was entitled to dismissal of the indictment or acquittal because the Forms 1040 did not inform him why the IRS was asking for the information and how it would be used. This contention is frivolous. At the time in question, 44 U.S.C. § 3512 provided: "no person shall be subject to any penalty for failing to maintain or provide information to any agency if the information collection request involved ... does not display a current control number assigned by the Director [of the Office of Management and Budget], or fails to state that such request is not subject to this chapter." 4 The trial record includes copies of the Form 1040 for each of the 1992-1994 tax years. An OMB control number is clearly displayed at the top of each form. If the Form 1040 displays the control number required by § 3512, "nothing more is required." United States v. Holden, 963 F.2d 1114, 1116 (8th Cir. 1992), quoting United States v. Dawes, 951 F.2d 1189, 1193 (10th Cir. 1991).

Second, Cavins argues that admission of evidence that he failed to file tax returns violated his Fifth Amendment privilege against self-incrimination. This argument is foreclosed by the Supreme Court's decision in United States v. Sullivan, 274 U.S. 259 (1927), which held that the Fifth Amendment does not authorize a taxpayer to refuse to file a return. As the Court explained, "If the form of return provided called for answers that the defendant was privileged from making he could have raised the objection in the return, but could not on that account refuse to make any return at all." Id. at 263; accord Garner v. United States, 424 U.S. 648, 656-65 (1976). Evidence that Cavins did not file tax returns was probative of whether he willfully attempted to evade his income tax liabilities. Therefore, the district court did not abuse its decision by admitting this evidence.

The judgment of the district court is affirmed.

1 The HONORABLE RICHARD E. DORR, United States District Judge for the Western District of Missouri.

2 For these reasons, the district court did not abuse its discretion in denying Cavins's pretrial motion for a bill of particulars on the willfulness issue. See United States v. Shepard, 462 F.3d 847, 860 (8th Cir.), cert. denied, 127 S. Ct. 838 (2006).

3 Cavins is represented on appeal by the same attorney who represented the defendant convicted of tax evasion and raised similar issues in Patridge, 507 F.3d at 1094-96.

4 The 1995 amendments to § 3512 would not change our analysis. See Pub. L. No. 104-13, § 2, 109 Stat. 163, 181 (1995).

Instructions given to the jury, after it had retired, to make every possible effort to come to agreement on at least some of the charges were proper and not coercive.

P.J. Commerford, CA-2, 1933 CCH ¶9255, 64 F2d 28. Cert. denied, 289 US 759.


Cendella, CA-1, 55-2 USTC ¶9586, 224 F2d 778. Cert. denied, 350 US 901.

Secret instructions were a denial of the taxpayer's trial rights to be present and were highly prejudicial to him, requiring a new trial.

F.L. McClanahan, CA-5, 60-1 USTC ¶9117, 272 F2d 663.

Instructions to the jury were complete and accurate, or there was no error in the judge's failure to give requested instruction.

O. Delli Paoli, SCt, 57-1 USTC ¶9356, 352 US 232.

R.C. Windisch, CA-5, 61-2 USTC ¶9720, 295 F2d 531.

F.L. McClanahan, CA-5, 61-2 USTC ¶9550, 292 F2d 630.

P.J. Richard, DC, 63-1 USTC ¶9243, 209 FSupp 542.

J.G. Ryan, CA-10, 63-1 USTC ¶9306, 314 F2d 306.

M. Sherwin, CA-9, 63-2 USTC ¶9550, 320 F2d 137. Cert. denied, 375 US 964. Rehearing denied, March 9, 1964.

E.P. Black, CA-8, 62-2 USTC ¶9792, 309 F2d 331. Cert. denied, 372 US 934.

J. Brewer, CA-10, 73-2 USTC ¶9612, 486 F2d 507.

T.L. Wiley, CA-8, 74-2 USTC ¶9694, 503 F2d 106.

R. Gray, CA-5, 75-1 USTC ¶9231, 507 F2d 1013. Cert. denied, 423 US 824.

J.D. Leonard, CA-2, 75-2 USTC ¶9695, 524 F2d 1076. Cert. denied, 425 US 958.

R.E. Berzinski, CA-8, 76-1 USTC ¶9211, 529 F2d 590.

J.A. Pelose, CA-2, 76-2 USTC ¶9572, 538 F2d 41.

P. Hollinger, CA-7, 77-1 USTC ¶9371, 553 F2d 535.

F.J. Hecht, CA-8, 83-1 USTC ¶9233, 515 FSupp 1198.

H.J. Kalita, CA-7, 83-2 USTC ¶9459, 712 F2d 1122.

B.A. Horton, CA-5, 76-1 USTC ¶9219, 526 F2d 884. Cert. denied, 429 US 820.

M.C. Goldberg, CA-3, 64-1 USTC ¶9316, 330 F2d 30. Cert. denied, 377 US 953.

G. Bacher, CA-5, 70-2 USTC ¶9692.

F.A. Marttila, CA-8, 70-2 USTC ¶9715, 434 F2d 834.

A.M. Siragusa, CA-2, 71-2 USTC ¶9730, 450 F2d 592. Cert. denied, 405 US 974.

R.D. Dana, CA-7, 72-1 USTC ¶9227, 457 F2d 207.

L.R. Johnson, CA-9, 72-1 USTC ¶9443, 460 F2d 20.

J.D. Miller, CA-8, 80-2 USTC ¶9842, 634 F2d 1134.

A.R. Grote, Jr., CA-5, 81-1 USTC ¶9109, 632 F2d 387. Cert. denied, 454 US 819.

R.L. Ness, CA-9, 81-2 USTC ¶9621, 652 F2d 890. Cert. denied, 454 US 1126.

Lurding, CA-6, 51-2 USTC ¶9478, 191 F2d 921.

C.J. Rothbart, CA-10, 84-1 USTC ¶9104.

R.E. Latham, CA-7, 85-1 USTC ¶9180, 754 F2d 747.

R.A. Bowden, DC Tenn., 84-2 USTC ¶10,007.

G.K. Garman, CA-4, 84-2 USTC ¶9948, 748 F2d 218. Cert. denied, 105 SCt 1361.

W.F. Green, CA-7, 85-1 USTC ¶9178, 757 F2d 116.

E. Witvoet, CA-7, 85-2 USTC ¶9530, 767 F2d 338.

L.C. Dunham, CA-9, 85-2 USTC ¶9617.

H.E. Bressler, CA-7, 85-2 USTC ¶9646. Cert. denied, 1/21/86.

F.L. Hook, CA-6, 86-1 USTC ¶9179, 781 F2d 1166. Cert. denied, 10/14/86.

J.C. Curtis, CA-6, 86-1 USTC ¶9195, 782 F2d 593.

D.H. Windfelder, CA-7, 86-1 USTC ¶9402.

I.A. Schiff, CA-2, 86-2 USTC ¶9684, 801 F2d 108. Cert. denied, 3/30/87.

F.J. Turano, CA-1, 86-2 USTC ¶9714.

F.T. Saussy, III, CA-6, 86-2 USTC ¶9718. Cert. denied, 3/2/87.

T.P. Meyer, CA-8, 87-1 USTC ¶9132, 808 F2d 1304.

E.A. Bohrer, CA-10, 87-1 USTC ¶9141, 807 F2d 159.

A. Davenport, CA-7, 87-2 USTC ¶9422, 824 F2d 1511.

E.J. Conley, CA-7, 87-2 USTC ¶9469, 826 F2d 551.

R.S. Taylor, CA-10, 87-2 USTC ¶9567, 828 F2d 630.

F.B. Black, Jr., CA-D.C., 88-1 USTC ¶9270, 843 F2d 1456.

W. Jeffries, CA-7, 88-2 USTC ¶9459, 854 F2d 254.

G.W. Barnett, CA-5, 91-2 USTC ¶50,519.

K.J. Massat, CA-5, 92-1 USTC ¶50,009, 948 F2d 923.

R.L. McGill, CA-1, 92-1 USTC ¶50,052, 964 F2d 222.

J.V. McKee, CA-8, 92-1 USTC ¶50,214.

F.O. Becker, CA-7, 92-2 USTC ¶50,314, 965 F2d 383. Cert. denied, 3/8/93.

R.S. Mal, CA-9, 91-2 USTC ¶50,518, 942 F2d 682.

R.V. Chastain, CA-9, 96-2 USTC ¶50,606.

J.M. Noske, CA-8, 97-2 USTC ¶50,538.

J.E. Sutton, CA-10 (unpublished opinion), 98-1 USTC ¶50,226, aff'g an unreported District Court decision.

R.A. King, CA-7, 97-2 USTC ¶50,746, 126 F3d 987.

E.H. Mathison, CA-8 (unpublished opinion), 98-2 USTC ¶50,560, aff'g, per curiam, an unreported District Court decision.

D.S. Bok, CA-2, 98-2 USTC ¶50,765, 156 F3d 157.

R.S. Carlson, CA-9, 2001-1 USTC ¶50,152.

G.A. DeMott, CA-9 (unpublished opinion), 2003-1 USTC ¶50,279, aff'g an unreported District Court decision.

To the contrary.

W.W. Heidelberg, CA-5, 63-2 USTC ¶9840, 324 F2d 678.

W.E. Nelson, CA-5, 86-1 USTC ¶9481, 791 F2d 336.

D.N. Heller, CA-11, 87-2 USTC ¶9572, 830 F2d 150.

G.M. Bishop III, CA-5, 2001-2 USTC ¶50,762, 264 F3d 535. Cert. denied, 4/22/2002.

C.A. Willis, CA-8, 2002-1 USTC ¶50,207, 277 F3d 1026.

D. Enright, CA-3 (unpublished opinion), 2002-1 USTC ¶50,394, aff'g an unreported District Court decision.

R. Pedroni, CA-3 (unpublished opinion), 2002-1 USTC ¶50,419, aff'g an unreported District Court decision.

Three individuals, who were properly convicted of conspiracy to defraud the government of income taxes under 18 U.S.C. §371, were not entitled to a jury instruction on a First Amendment defense because their words and acts were not remote from the commission of criminal acts. The individuals held meetings at which they instructed attendees to claim unlawful exemptions and not file tax returns. Also, instructions to the jury on the evidence required to prove a conspiracy were not misleading and adequately stated the elements necessary to convict.

H.D. Fleschner, CA-4, 96-2 USTC ¶50,536, 98 F3d 155.

The lower court's failure to instruct the jury on the defense of reliance on the advise of counsel did not constitute error, and, even if it did, no objection to such omission was ever made by the taxpayer.

D.G. Crum, CA-9, 76-1 USTC ¶9214, 529 F2d 1380.

The lower court did not err in failing to give a separate instruction on the defense theory that the defendant relied on the advice of counsel in not filing returns. There was no evidence of such reliance.

T.W. Hoopes, CA-10, 76-2 USTC ¶9797, 545 F2d 721. Cert. denied, 431 US 954.

The trial judge committed harmless error when he failed to inform counsel of the proposed action on the requested instructions prior to counsel's jury summation.

W.R. Conlin, CA-2, 77-1 USTC ¶9291, 551 F2d 534. Cert. denied, 434 US 831.

The trial judge did not err in instructing the jurors to decide factual questions on the evidence presented but to apply the law as he explained it to them.

D.C. Irwin, CA-10, 77-2 USTC ¶9627, 561 F2d 198. Cert. denied, 98 SCt 725.

Jury instructions as to wilfulness were proper.

D.L. Abdul, CA-9, 58-1 USTC ¶9453, 254 F2d 292 and CA-9, 60-1 USTC ¶9432, 278 F2d 234. Cert. denied, 364 US 832.

B.N. Litman, CA-3, 57-2 USTC ¶9820, 246 F2d 206.

Legatos, CA-9, 55-1 USTC ¶9443, 222 F2d 678.

M.V. Kuntz, CA-2, 58-2 USTC ¶9886, 259 F2d 871.

G. Cindrich, Jr., CA-3, 57-1 USTC ¶9343, 241 F2d 54.

P.C. Magnus, CA-2, 66-2 USTC ¶9660, 365 F2d 1007.

E.M. Ostendorff, CA-4, 67-1 USTC ¶9204, 371 F2d 729. Cert. denied, 386 US 982.

R.L. Strauss, CA-5, 67-1 USTC ¶9405, 376 F2d 416.

W.C. Siravo, CA-1, 67-1 USTC ¶9446, 377 F2d 469.

C.A. Deloach, CA-5, 68-1 USTC ¶9119, 387 F2d 145.

G.L. Samuels, CA-5, 68-2 USTC ¶9512, 398 F2d 964.

J.W. Tolbert, Sr., CA-7, 69-1 USTC ¶9173, 406 F2d 81.

R.G. Hayes, CA-5, 69-1 USTC ¶9204, 407 F2d 189.

J.D. McCarty, CA-10, 69-1 USTC ¶9322, 409 F2d 793. Cert. denied, 396 US 836.

A.L. Wainwright, CA-10, 69-2 USTC ¶9503, 413 F2d 796. Cert. denied, 396 US 1009.

S. Mac Corkle, CA-4, 69-1 USTC ¶9365, 407 F2d 497.

D.J. O'Connor, CA-1, 70-2 USTC ¶9649, 433 F2d 752. Cert. denied, 401 US 911.

M. Platt, CA-2, 70-2 USTC ¶9719, 435 F2d 789.

S.J. Polack, CA-3, 71-1 USTC ¶9356, 442 F2d 446. Cert. denied, 403 US 931.

J.E. Handy, CA-9, 71-2 USTC ¶9700, 450 F2d 145.

V.M. Mathews, DC, 72-1 USTC ¶9352, 335 FSupp 157. Aff'd on another issue, CA-3, 72-2 USTC ¶9478, 463 F2d 182. Cert. denied, 409 US 896.

W.R. Ming, Jr., CA-7, 72-1 USTC ¶9449, 466 F2d 1000. Cert. denied, 409 US 915.

N.L. Lachman, CA-1, 72-2 USTC ¶9766, 469 F2d 1043. Cert. denied, 411 US 931.

E.J. Hagen, CA-10, 73-1 USTC ¶9106, 470 F2d 110. Cert. denied, 412 US 905.

H. Gurtner, CA-9, 73-1 USTC ¶9228, 474 F2d 297.

K. Vanderburgh, CA-9, 73-1 USTC ¶9304, 473 F2d 1313.

J.B. Sherman, CA-6, 74-1 USTC ¶9103, 486 F2d 1404.

O.H. Klee, CA-9, 74-1 USTC ¶9412, 494 F2d 394.

R.E. Hawk, CA-9, 74-1 USTC ¶9465, 497 F2d 365.

M.L. Cooley, CA-9, 74-2 USTC ¶9718, 501 F2d 1249.

H.M. Bowness, CA-5, 74-2 USTC ¶9836, 504 F2d 391.

J.W. Greenlee, CA-3, 75-1 USTC ¶9488, 517 F2d 899. Cert. denied, 423 US 985.

J.J. Duffy, Jr., CA-3, 75-2 USTC ¶9674.

B.C.M. Pohlman, CA-8, 75-2 USTC ¶9677, 522 F2d 974. Cert. denied, 423 US 1049.

P. Pandilidis, CA-6, 75-2 USTC ¶9785. Cert. denied, 424 US 933.

J.T. Hull, CA-10, 76-1 USTC ¶9181.

O.H. White, CA-4, 76-1 USTC ¶9313. Cert. denied, 429 US 884.

J.E. Murphy, CA-9, 76-2 USTC ¶9551.

A.L. Honea, CA-8, 77-2 USTC ¶9489, 556 F2d 906.

L.S. Brown, CA-10, 79-1 USTC ¶9322, 600 F2d 248.

J.J. Harsky, CA-8, 80-1 USTC ¶9126, 610 F2d 548.

J.W. McCarty, CA-5, 82-1 USTC ¶9150, 665 F2d 596. Cert. denied, 456 US 991, 102 SCt 141.

D.L. Lewis, CA-7, 82-1 USTC ¶9236, 671 F2d 1025.

B.R. Hughes, CA-5, 85-2 USTC ¶9576, 766 F2d 875.

J.C. Ausmus, Jr., CA-6, 85-2 USTC ¶9742, 774 F2d 722.

T.G. Mueller, CA-9, 86-1 USTC ¶9121, 778 F2d 539.

J.R. Whiteside, CA-5, 87-1 USTC ¶9199, 810 F2d 1306.

L. Dube, CA-7, 87-1 USTC ¶9351, 820 F2d 886.

J.J. Birkenstock, CA-7, 87-2 USTC ¶9416, 823 F2d 1026.

S. Felak, Jr., CA-8, 87-2 USTC ¶9594, 831 F2d 794.

K.E. Krzyske, CA-6, 88-1 USTC ¶9117, 836 F2d 1013.

D.E. Fournier, CA-7, 88-2 USTC ¶9544, 861 F2d 148.

J.J. Hogan, CA-1, 88-2 USTC ¶9593, 861 F2d 312.

T.E. Hauert, CA-7, 95-1 USTC ¶50,045, 40 F3d 197. Cert. denied, 5/1/95.

To the contrary.

M.L. Petersen, CA-10, 59-2 USTC ¶9538, 268 F2d 87.

S.E. Haner, CA-5, 63-1 USTC ¶9390, 315 F2d 792.

S. Vitiello, CA-3, 66-2 USTC ¶9480, 363 F2d 240.

H.C. Collins, CA-6, 72-1 USTC ¶9323, 457 F2d 781.

M. Martin, CA-7, 74-2 USTC ¶9839, 507 F2d 428.

B.C.M. Pohlman, CA-8, 75-1 USTC ¶9228, 510 F2d 414.

L.A. Jerde, CA-8, 88-1 USTC ¶9238, 841 F2d 818.

C.D. Morrison, CA-4 (unpublished opinion), 2002-1 USTC ¶50,231, aff'g, per curiam, an unreported District Court opinion.

A conviction for willful failure to file timely income tax returns was reversed where an instruction to the jury equating "willfulness" with a "careless or reckless disregard of the law" was found to be an error so prejudicial as to require a new trial.

T.R. Bengimina, CA-8, 74-2 USTC ¶9513, 499 F2d 117.

W.H. Eilertson, CA-4, 83-1 USTC ¶9363, 707 F2d 108.

A jury's decision to convict the taxpayer of willful failure to file tax returns and willful filing of false withholding exemption forms was vacated, because the district court had improperly instructed the jury to use an objective test in determining willfulness. Rather than instructing the jury to consider the reasonableness of the taxpayer's belief that tax law does not deem wages to be income, the district court should have instructed the jury to consider whether the taxpayer subjectively held that belief, regardless of what the law actually requires. Mistake of law may be a defense to a charge of willfulness.

R.A. Aitken, CA-1, 85-1 USTC ¶9209, 755 F2d 188.


J.B. Wells, CA-10, 86-1 USTC ¶9407, 790 F2d 73.

A willfulness charge was adequate even though it did not state that action taken through gross negligence was not willfulness. The court did state that actions taken through negligence, inadvertence or mistake or through a good faith misunderstanding of the requirements of the law could not be willful.

O.W. Ware, CA-10, 79-2 USTC ¶9608, 608 F2d 400. Rehearing denied, CA-10, 79-2 USTC ¶9659.

Instructions to the jury on willful blindness were appropriate since the taxpayers may have deliberately hired an inexperienced return preparer to maximize the chances of reporting errors and to manipulate him.

A.H. Rothrock, CA-1, 87-1 USTC ¶9111, 866 F2d 318.

Jury instructions as to the scope of the evidence was proper.

A. Pasha, CA-7, 64-2 USTC ¶9595, 332 F2d 193.

Jury instructions given by the court properly stated the evidentiary standard to be met by the IRS.

W. Goldstein, CA-7, 82-2 USTC ¶9507, 685 F2d 179.

There was no error in denying a requested instruction where it was not submitted until after argument of the case and the United States attorney was not presented with a copy of the request.

Schuermann, CA-8, 49-1 USTC ¶9281, 174 F2d 397. Cert. denied, 338 US 831.

Wolcher, CA-9, 55-1 USTC ¶9161, 218 F2d 505. Cert. denied, 350 US 822, 76 SCt 48. Aff'd on another issue, CA-9, 56-2 USTC ¶9719, 233 F2d 748. Cert. denied, 352 US 839.

Similarly, as to not providing defendant with an opportunity to object to an instruction out of hearing of the jury.

Bostwick, CA-5, 55-1 USTC ¶9170, 218 F2d 790.

The trial court instructed the jury that if it found defendant aided and abetted H in willfully filing a false return for the purpose of defeating and evading taxes, this would warrant it to find defendant guilty of willfully aiding and abetting H. The charge as a whole could not lead to misunderstanding, nor was it contradictory.

H.V. Imholte, CA-8, 55-2 USTC ¶9727, 226 F2d 585.

The trial court correctly charged the jury that monies received by the officers and agents of a corporation on the sale of property by the corporation were corporate income.

L.M. Bernard, CA-7, 61-1 USTC ¶9221, 287 F2d 715. Rehearing denied on other grounds, CA-7, 61-1 USTC ¶9378.

The trial judge's instructions, taken as a whole, correctly informed the jury that restrictions on stock the defendant donated did not completely disable him from selling it.

J. Levine, CA-2, 77-1 USTC ¶9202.

It was not error to refuse to instruct the jury that a failure to make a proper return and pay a tax is not a violation of Code Sec. 7201. The proof showed an intentional act to evade the law and the affirmative act of filing a return reporting a tax due of over $10,000 less than was actually due.

J.J. Afferbach, CA-10, 77-1 USTC ¶9127, 547 F2d 522. Cert. denied, 429 US 1098.

The trial judge did not err in failing to instruct the jury that reliance on an inefficient and negligent accountant could constitute justification for failure to file returns.

W.E. Wilson, CA-5, 77-1 USTC ¶9331, 550 F2d 259.

The trial judge did not err in failing to instruct the jury on the defense theory that the defendant's reliance on his tax advisor demonstrated his lack of specific intent.

S.R. Pallan, CA-9, 78-1 USTC ¶9361, 571 F2d 497.

The trial court did not err in refusing to instruct the jury that, if the appellant acted merely as a conduit for passing the unreported income to third parties, he could not be found guilty where it had instructed that the appellant might be found guilty if the jury determined that he had actually received the money and retained a substantial portion for his own account.

H. Gross, CA-2, 61-1 USTC ¶9222, 286 F2d 59.

The prosecution used the net worth method to reconstruct the defendant's income, but the District Court inadvertently failed to instruct the jury on the nature of the net worth method. Although neither the prosecution nor the defense objected to the District Court's failure to instruct the jury on the net worth method, the conviction was reversed.

J.W. Tolbert, Sr., CA-7, 66-2 USTC ¶9682, 367 F2d 778.

There was no error on the part of the trial judge in sending the jury back for further deliberation when it expressed some confusion regarding the instructions. The jury was advised that any problem could be submitted to the court in writing; no objection was made to such instruction.

F.P. Balistrieri, CA-7, 68-2 USTC ¶9641, 403 F2d 472. Rev'd and rem'd on another issue, SCt, 69-2 USTC ¶9462, 395 US 710.

The appellate court held that the lower court did not err when it informed the jury of the personal interest of the taxpayer in the outcome of the trial and that it was not incompatible with his capability of telling the truth.

J.G. Martin, CA-2, 75-2 USTC ¶9699, 525 F2d 703. Cert. denied, 423 US 1035.

The trial judge did not err in instructing the jury that it could probably reach a guilty verdict without finding that the source of the defendant's unreported income was the purchase and sale of heroin as was averred in the indictment charging him with attempted tax evasion. This charge did not violate the rule against prejudicial variance.

B. Rodriguez, CA-2, 77-1 USTC ¶9175, 545 F2d 829. Cert. denied, 434 US 819.

In a net worth income tax prosecution, the burden of disproving a taxpayer's claimed source of nontaxable receipts rests on the government. Therefore, instructions to the jury which placed upon the taxpayer the burden of proving beyond a reasonable doubt that his parents were the source of his funds in order to gain acquittal were erroneous, and his conviction for willfully filing false and fraudulent tax returns was granted.

R.G. Mogavero, CA-4, 75-2 USTC ¶9655, 521 F2d 625.

In a net worth prosecution, the trial judge did not err in instructing the jury that it could consider income whether legal or illegal (this did not prejudice the defendant) and that the defendant had a burden to explain his income. This merely told the jury to decide the weight to be attached to the defendant's explanation.

A. Renfro, CA-6, 79-2 USTC ¶9438, 600 F2d 55. Cert. denied, 444 US 941.

Failure of the District Court judge to instruct the jury that income meant gross receipts less costs of goods sold may have materially prejudiced him.

J. Ballard, CA-8, 76-1 USTC ¶9378, 535 F2d 400. Cert. denied, 429 US 918.

Jury instructions on the issue of good faith were legally adequate and substantially the same as acceptable portions of the requested instructions.

L. Quimby, CA-5, 81-1 USTC ¶9196, 636 F2d 86.

The district court did not err in instructing the jury that the taxpayer's "disagreement with the law or the way in which tax revenues are spent does not constitute good faith misunderstanding of the requirements of the law."

R.E. Parshall, CA-8, 85-1 USTC ¶9279, 757 F2d 211.

The court's instructions to the jury, which included a statement that a partner's signature on a partnership return is presumed to be a signature on behalf of the partnership, were not in error.

M.N. Wolters, CA-9, 81-2 USTC ¶9679, 656 F2d 523.

The government counsel's reference to the submission of "fraudulent" forms was cured by the trial judge in his instructions to the jury, so that no prejudice resulted.

E.E. Johnson, CA-4, 80-2 USTC ¶9783, 634 F2d 1213. Cert. denied, 451 US 907, 101 SCt 1974.

Instructions which properly stated the law regarding the assertion of the Fifth Amendment privilege against self-incrimination and the requirement that defendant come forward with something more than a bald assertion of the privilege in order to validly invoke the Fifth Amendment did not impermissibly shift the burden of proof from the government or remove the presumption of innocence to which defendant was entitled. The court also properly gave an instruction which stated that the Secretary is permitted to file a return for the taxpayer.

T.E. Verkuilen, CA-7, 82-2 USTC ¶9618, 690 F2d 648.

A defendant's conviction was affirmed where: (1) instructing the jurors to reconsider their position if they found that a majority of the jurors took an opposite position and (2) failing to address the jurors' concern at having to work during a religious holiday did not constitute reversible error.

R.B. Graham, CA-3, 85-1 USTC ¶9317, 758 F2d 879.

A state senator who diverted campaign contributions to his personal use and filed false campaign statements was improperly convicted of income tax evasion, filing false tax returns, and mail fraud. He successfully showed that the trial judge erred by instructing the jury that political contributions are, per se, includible in gross income when they are used for personal purposes. The issue was one of fact which should have been resolved by the jury according to the donors' intent.

J.R. Pisani, CA-2, 85-2 USTC ¶9676, 773 F2d 397.

A jury in a criminal trial was improperly instructed that if the defendant did not have a reasonable ground for his claimed good faith misunderstanding of the law, then his belief as to the law's requirements was not a defense to the crime of failure to file. The element of willfulness is required to be proved according to a subjective standard.

R.R. Phillips, CA-10, 85-2 USTC ¶9745, 775 F2d 262.

A taxpayer was not prejudiced by the instruction to the jury that the expert witness had reached a hypothetical conclusion as to the amount of funds that the taxpayer had on hand.

A district court failed to explain that affirmative acts of tax evasion are required for conviction, and the appellate court remanded the case for a new trial.

K.J. Masat, CA-5, 90-1 USTC ¶50,156, 896 F2d 88.

The giving of an "ostrich" instruction to the jury was not inappropriate given the apparently disorganized records of a taxpayer and that he could not ignore what his records would disclose if they were organized. Furthermore, despite the taxpayer's argument that the instruction improperly imposed a negligence standard on a specific-intent crime, there were other instructions that adequately protected the taxpayer from being convicted for negligently failing to realize his income tax responsibilities. Moreover, this instruction had already been approved in a prosecution involving a crime that requires guilty knowledge.

L. Defazio, CA-7, 90-1 USTC ¶50,204, 899 F2d 626.

The trial court did not err when it instructed the jury on the law and presented its own instruction on the defendant's incompetency theory.

L.M. Barta, CA-8, 90-1 USTC ¶50,033.

An instruction that blank tax returns do not constitute returns as a matter of law did not direct a verdict in favor of the IRS because the jury remained free to resolve the issue of whether the taxpayer acted willfully.

E.R. Wunder, CA-6, 90-2 USTC ¶50,575, 919 F2d 34.

The trial court should have instructed the jury to consider whether the taxpayer's beliefs were actually or subjectively held in good faith, rather than whether his beliefs were objectively reasonable.

R.A. Pabisz, CA-2, 91-2 USTC ¶50,316, 936 F2d 80.

The trial court should have instructed the jury that, if it found that the taxpayers/investors relied on their interpretation of Code Sec. 1058 in good faith, then they could not be held criminally liable for proceeding in accordance with that reliance.

J.S. Regan, CA-2, 91-2 USTC ¶50,351, 937 F2d 823.

An attorney's convictions for failing to file income tax returns, filing false income tax returns and filing false statements with the Department of Housing and Urban Development were upheld. The trial court did not err in giving a "willful blindness" instruction because the evidence introduced could have supported a finding that he had deliberately avoided knowledge of the facts that made his conduct illegal. This instruction did not taint his conviction for filing a false statement with HUD because other instructions made it clear that actual intent to violate the law was required to support a conviction.

C.L. Bussey, Jr., CA-8, 91-2 USTC ¶50,402, 942 F2d 1241. Cert. denied, 5/18/92.

Jury instructions to consider a tax fraud conspirator's status as a non-practicing attorney and accountant and a "conscious avoidance" jury instruction were not erroneous.

C.H. Fletcher, CA-2, 91-2 USTC ¶50,137, 928 F2d 495. Cert. denied, 10/7/91.

Testimony regarding a public statement made by the taxpayer's attorney that jurors in criminal tax cases should always vote "not guilty" was admissible to impeach the attorney and was not prejudicial. Also, the jury instruction given prior to the attorney's testimony indicating that he received immunity and, therefore, that weight given the testimony must be considered with great caution was not reversible error because it was unlikely that it would affect the jury's decision. Finally, it was proper to allow jury instructions stating that reliance on counsel was a circumstance to consider in evaluating the taxpayer's willfulness in failing to file.

W.J. Benson, CA-7, 91-2 USTC ¶50,437, 941 F2d 598.

In a second trial on the same counts of willful failure to file tax returns and tax evasion that were originally charged in W.J. Benson, above, the individual was again convicted and the conviction was sustained. The evidence was sufficient to support the conviction, and the jury instructions were proper.

W.J. Benson, CA-7, 95-2 USTC ¶50,540, 67 F3d 641.

The trial judge erred in stating to the jury his opinion that the defendant was guilty beyond a reasonable doubt.

Murdock, 3 USTC ¶1194, 290 US 389.

Commenting on the evidence is a proper function of a federal judge.

J.M. Newton, CA-4, 47-2 USTC ¶9353, 162 F2d 795.

It was reversible error to instruct the jury that "by the filing of the amended return the defendants have admitted that the original return was false and untrue."

Heindel, CA-6, 45-2 USTC ¶9372, 150 F2d 493.

It was reversible error for the trial judge to instruct the jury that assessments made against the taxpayer were valid obligations of the taxpayer to the government as a matter of law, since the fact of a valid assessment was at issue.

W.B. England, CA-7, 65-1 USTC ¶9350, 347 F2d 425.

Conviction for materially understating income was reversed because of the error which occurred in the court's failure to give a precise and specific charge to the jury.

J.E. Mitchell, CA-4, 74-1 USTC ¶9414, 495 F2d 285.

A charge to the jury was not prejudicial because it stated that the jury was instructed, at defendant's request, with regard to his failure to testify.

Glazer, DC, 53-1 USTC ¶9351.

A supplemental instruction regarding proof about sources of unreported income was not prejudicial.

W. Goldstein, CA-7, 82-2 USTC ¶9507, 685 F2d 179.

Jury instructions that were, in part, improper did not harm taxpayer.

E. Mastropieri, CA-2, 82-2 USTC ¶9484, 685 F2d 776.

The jury should have been cautioned on the consideration to be given to evidence about offenses not being tried in the action.

J.R. Montgomery, CA-5, 53-1 USTC ¶9336, 203 F2d 887.

It is an error that the trial court failed to instruct the jury that the affidavit of a witness introduced for the purpose of impeaching him should not be regarded as substantive evidence. But the error was harmless because there still remained 90% of unreported income.

Scanlon, CA-1, 55-1 USTC ¶9508, 223 F2d 382.

The court's refusal to instruct the jury that the indictment constituted no evidence of guilt was not reversible error in the light of other instructions given.

Watts, CA-10, 54-1 USTC ¶9350, 212 F2d 275. Rem'd sub nom. D.H. Mitchell, SCt, 55-1 USTC ¶9139, 348 US 905.

The trial court's instruction relative to the theory of net worth was not erroneous.

Watts, CA-10, 55-1 USTC ¶9301, 220 F2d 483.

The charge to the jury was inadequate where it did not sufficiently relate the theory of net worth prosecution to the disputed questions.

R.A. O'Connor, CA-2, 60-1 USTC ¶9163, 273 F2d 358.

The defendant was entitled to a special instruction to the jury (which was not given) about the nature of the government's bank deposit method and its assumptions and weaknesses.

M. Greenberg, CA-1, 61-2 USTC ¶9727, 295 F2d 903.

Where the record supported the charge that the defendant performed various acts which constituted an affirmative, wilful attempt to evade or defeat the payment of the tax, the jury's conviction was upheld.

Sens, CA-6, 54-1 USTC ¶9415, 212 F2d 795. Cert. denied, 347 US 1015.

Requested charge to the effect that the taxpayer "was entitled to rely on the advice of others and that no mistaken advice or belief as to what constituted income was an offense in itself," was properly refused.

W.F. Monroe, CA-5, 54-2 USTC ¶9542, 215 F2d 81. Cert. denied, 348 US 914.

The trial court did not err in instructing the jury that questions of taxpayer's counsel should be disregarded as evidence when based on the assumption that all the money represented by checks for legal fees did not belong to taxpayer.

P. Dillon, CA-8, 55-1 USTC ¶9131, 218 F2d 97. Cert. dism'd, SCt, 56-1 USTC ¶9111, 350 US 906.

The instruction that if taxpayers were acquitted the government could not appeal could not be construed as asking the jury to convict, in view of the overwhelming evidence of the taxpayers' guilt.

Strauch, CA-6, 54-1 USTC ¶9452, 213 F2d 805. Cert. denied, 350 US 836.

There was no merit in taxpayer's complaint that the instruction to the jury was not fair in the matters unfavorable to him were emphasized and matters favorable to him were left out.

Kafes, CA-3, 54-2 USTC ¶9492, 214 F2d 887. Cert. denied, 348 US 887.

Prejudicial error was committed in the instructions to the jury where important facts were misstated, the defense theory was distorted, and other prejudicial remarks were made.

E.J. Benes, CA-6, 60-1 USTC ¶9348, 276 F2d 99.

Similarly, where the district court failed to instruct the jury on the inferences and assumptions underlying the "net worth" and "bank deposits" methods of proving unreported income. However, the district court's failure to instruct on forms on nontaxable income was not plain error.

J. Hall, CA-9, 81-1 USTC ¶9209, 650 F2d 994.

The trial judge was in error in instructing that the taxpayer was guilty of tax evasion if he did not use ordinary diligence as to the correctness of his tax return.

Hartman, CA-8, 54-2 USTC ¶9522, 215 F2d 386.

Similarly, where a jury was instructed that a tendered defense was not available, since the question of whether the testimony offered was a defense was a question of fact for the jury to decide.

R.A. Koontz, CA-5, 60-1 USTC ¶9405, 277 F2d 53.

Viewing the instructions of the court as a whole, it was felt that the jury was clearly informed that it was free to perform its fact-finding functions.

McFee, CA-9, 53-2 USTC ¶9549, 206 F2d 872. Order denying cert. vacated, 347 US 1007, 74 SCt 862. Rem'd, SCt, sub nom. D.H. Mitchell, 55-1 USTC ¶9139, 348 US 905. Reaff'd, CA-9, 55-1 USTC ¶9414, 221 F2d 807.

Although a jury charge concerning a defendant's good reputation was grammatically incorrect and confusing, it conveyed the idea that evidence of good character may be sufficient to create a reasonable doubt of guilt.

C.R. Haller, CA-9, 76-2 USTC ¶9708, 543 F2d 62.

An instruction in a conspiracy case was proper where it was couched in conditional language.

Witt, CA-3, 54-2 USTC ¶9582, 215 F2d 580.

Instructions to the jury that the prior acquittal involving prior years was not to be considered in determining guilt or innocence on the present charges were held proper.

V.H. Mitchell, CA-9, 54-2 USTC ¶9449, 213 F2d 951. Cert. denied, 348 US 905.

Charges to the jury concerning inferences, conclusions and findings appropriate on the evidence were proper where evidence of the government included his tax returns and admissions to revenue agents.

Linquata, CA-1, 49-1 USTC ¶9213, 173 F2d 201. Cert. denied, 337 US 916.

Where the court's instructions assumed that the crime had, in fact, been committed, such error affected the substantial rights of the taxpayer and required a reversal.

Balodimas, CA-7, 49-2 USTC ¶9434, 177 F2d 485.

Leo Link, CA-3, 53-1 USTC ¶9230, 202 F2d 592.

An instruction that an inference of intent could be drawn from the taxpayer's actions erroneously shifted the burden of proof with respect to intent from the Government to the taxpayer.

N. Mann, CA-5, 63-2 USTC ¶9563, 319 F2d 404. Cert. denied, 375 US 986.

It was error for the trial court not to give a requested instruction as to the deductibility of payments to the taxpayer by his wholly owned corporation where the instruction embodied one of the taxpayer's theories as to the false corporation returns. Accordingly, his convictions of tax evasion and aiding in the preparation of fraudulent tax returns were reversed and the case remanded for a new trial.

W.M. Bass, CA-7, 70-1 USTC ¶9311, 425 F2d 161.

To the contrary.

A.L. Wainwright, CA-10, 71-2 USTC ¶9594, 448 F2d 984.

It was not error to refuse to give a jury an instruction that a claim of Fifth Amendment privilege against disclosing income on a tax return was to be considered by the jury as a proper defense against the charge of willful failure to file.

D.D. Johnson, CA-5, 78-2 USTC ¶9642, 577 F2d 1304.


A.B. Tibbetts, CA-5, 81-1 USTC ¶9475, 646 F2d 193.


C.E. Rice, CA-5, 81-2 USTC ¶9718, 659 F2d 524.

Similarly. Also, there was no entitlement to an instruction that the IRS was under a statutory duty to prepare the defendant's return.

E.M. Millican Jr., CA-5, 79-2 USTC ¶9543, 600 F2d 273. Cert. denied, 445 US 915.

The trial court properly instructed the jury that, if it found that the defendant had made exculpatory statements outside the courtroom with knowledge of their falsity, it could consider this as evidence of consciousness of guilt. A requirement that the jury find that the defendant in fact made the statements was implicit in the instruction.

R. Sawyer, CA-7, 79-2 USTC ¶9537, 607 F2d 1190. Cert. denied, 100 SCt 1338.

It was not reversible error to instruct the jury that, after the government had made a reasonable effort to identify cost of goods sold, the burden then shifted to the defendant to produce evidence of additional cost of goods sold. The defendant, proceeding without counsel, did not object to the charge when it was given. And it amounted to little more than a statement of accounting fact.

E.L. Fowler, CA-5, 79-2 USTC ¶9666, 605 F2d 181. Cert. denied, 100 SCt 1599.

The trial court did not err in instructing the jury that the Fifth Amendment does not give a person the right to withhold nonincriminating information on a tax return and that the revelation of income from legitimate activities does not amount to self-incrimination.

D.C. Reed, CA-5, 82-1 USTC ¶9312, 670 F2d 622.

The trial court did not err in instructing the jury that, as a matter of law, the taxpayer's tax forms did not contain enough information to constitute a return.

E.M. Loniello, CA-8, 84-2 USTC ¶9825.

A conviction for tax evasion was reversed because the district court judge failed to instruct the jury on how the cash expenditures method was used to establish the taxpayers' income tax deficiency.

J.B. Carter, CA-11, 84-2 USTC ¶9537.

The district court improperly instructed the jury that the taxpayer's alleged good faith belief that wages were not taxable income was not a defense to the taxpayer's failure to file income tax returns and his filing of false withholding forms. It was for the jury to determine if the taxpayer did not know that the tax laws included wages in taxable income.

E.T. Burton, CA-5, 84-2 USTC ¶9689.

The trial judge acted within his discretion when he instructed the jury on the law instead of distributing texts of a number of opinions relied upon by the taxpayer, as the taxpayer had requested.

R.A. Gleason, CA-8, 84-1 USTC ¶9161, 726 F2d 385.

It was reversible error in failing to charge, as requested by defendant, that it was necessary to prove knowledge of the obligation and wrongful intent to evade it.

Hargrave, CA-5, 3 USTC ¶1192, 67 F2d 820.

An instruction, taken as a whole, properly informed the jury that the question of competency to commit the offense was a separate element of the offense charged.

B. Klein, CA-10, 80-1 USTC ¶9109.

The trial judge's error in instructing the jury that they should decide whether a reasonable person would have understood that taxes were due was harmless. The charge as a whole was adequate. Moreover, the judge properly refused to give the defendant's proffered instructions on her good faith theory of defense --those instructions contained a misstatement of the law.

D.H. Walsh, CA-7, 80-2 USTC ¶9608.

Repeated references to the lack of dispute in facts, except with respect to purpose or intent, tended to overshadow instructions given elsewhere as to taxpayer's right to minimize taxes by legal means.

Raub, CA-7, 49-2 USTC ¶9422, 177 F2d 312.

But there was no reversible error in refusing to give requested jury instructions emphasizing certain phases of the evidence where the jury had been charged to consider all relevant facts and circumstances.

Pannell, CA-3, 49-2 USTC ¶9482, 178 F2d 98.

G.L. Smith, CA-3, 53-2 USTC ¶9538, 206 F2d 905.

The court erred in refusing to give a requested instruction that the defendant should be acquitted if his evidence in rebuttal of the Government's evidence would raise in the minds of the jury a reasonable doubt as to the substantial accuracy of the computations used in the net worth method.

Demetree, CA-5, 53-2 USTC ¶9646, 207 F2d 892.

The Court below did not err in refusing to give an instruction on the defense of entrapment nor in finding that an accountant was an accomplice and that his testimony was to be viewed with extreme caution.

Papadakis, CA-9, 54-1 USTC ¶9137, 208 F2d 944.

Taxpayer was not entitled to an instruction as to a possible inference to be drawn from the Government's failure to introduce in evidence all of taxpayer's records in its possession.

Remmer, CA-9, 53-1 USTC ¶9421, 205 F2d 277.

Where two instructions are given to the jury, one erroneous and prejudicial and the other correct, it is impossible to tell which one the jury followed and it constitutes reversible error.

Nicola, CA-3, 4 USTC ¶1331, 72 F2d 780.


Martell, CA-3, 52-2 USTC ¶9541, 199 F2d 670. Cert. denied, 345 US 917.

Where defendant did not except to instructions, they may not be attacked on appeal.

Kitrell, CA-10, 35-2 USTC ¶9548, 79 F2d 259. Cert. denied, 296 US 643.

Malone, CA-7, 38-1 USTC ¶9032, 94 F2d 281. Cert. denied, 304 US 562.

Fischer, CA-10, 54-1 USTC ¶9370, 212 F2d 441.

J. Gordon, CA-3, 57-1 USTC ¶9443, 242 F2d 122. Cert. denied, 354 US 921.

R. Percifield, CA-9, 57-1 USTC ¶9406, 241 F2d 225.

G.E. Hayes, CA-10, 56-2 USTC ¶10,022, 238 F2d 318. Cert. denied, 353 US 983.

Rule 30 of the Federal Rules of Criminal Procedure bars a party from assigning as error, on appeal, the giving of a jury instruction to which he has not objected on trial. Under Rule 52(b), however, the appellate court may of its own motion notice errors in instructions that amount to a miscarriage of justice.

J.A. Herzog, CA-9, 56-2 USTC ¶9654, 235 F2d 664. Aff'g on rehear. CA-9, 55-2 USTC ¶9694, 226 F2d 631. Cert. denied, 352 US 844.

Appellant must state specifically what he objects to in the instructions, and the grounds for his objection.

O.K. Armstrong, CA-8, 56-1 USTC ¶9210, 228 F2d 764. Cert. denied, 351 US 918.

Misdemeanor charges were properly refused where felony charges were given and the statute of limitations had run on the misdemeanor charges.

A. Chaifetz, CA-D.C., 60-2 USTC ¶9786, 288 F2d 133. Cert. denied, SCt, 61-1 USTC ¶9413, 366 US 209.

An instruction that a verdict of guilty of a misdemeanor rather of a felony would be permissible was properly denied.

L. Berra, SCt, 56-1 USTC ¶9480, 351 US 131.

The district court committed reversible error by failing to instruct the jury on the lesser-included offense of willful failure to pay taxes in violation of Code Sec. 7203, which is a lesser-included offense of Code Sec. 7201. Accordingly, a rational jury could have found a lack of intent or motive necessary to convict on evasion, while still finding a willful failure to pay the taxes when due.

J.H. DeTar, CA-9, 87-2 USTC ¶9621, 832 F2d 1110.

See, also, the lesser-offense rule at ¶41,318.205.

Refusal of trial court to charge upon the effect of a prior conviction on credibility of a witness against defendant was reversible error.

Delaney, CA-3, 35-1 USTC ¶9258, 77 F2d 916.

Trial court properly instructed jury that collateral transactions showing motive may be considered in order to show motive in failing to include money in appellant's income tax return.

H.J. Sullivan, CA-9, 35-1 USTC ¶9129, 75 F2d 622. Cert. denied, 295 US 757.

Instructions to the jury on circumstantial evidence and definition of reasonable doubt were erroneous.

Paddock, CA-9, 35-2 USTC ¶9611, 79 F2d 872.

There was no error in refusing the requested instruction to the jury that appellant could not be convicted if no additional tax was due, since only in the event the unreported receipts were not taxable could this instruction be appropriate.

Marienfeld, CA-8, 54-2 USTC ¶9489, 214 F2d 632. Cert. denied, 348 US 865.

The taxpayer's conviction for wilfully attempting to evade the income tax was reversed because the jury instructions did not point out that a defendant is not responsible if, because of mental disease, he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law.

R.G. Sheller, CA-2, 67-1 USTC ¶9107, 369 F2d 293.

The district court committed plain error in instructing the jury that an unreasonable, but good-faith, misunderstanding of the income tax law was no defense to the charge of failing to file tax returns and filing false withholding exemption certificates. Since "willfulness" in the context of a criminal tax case has been defined as the "intentional violation of a known legal duty," there was little doubt that the instructions given in the instant case were erroneous.

R.W. Flitcraft, CA-5, 86-2 USTC ¶9778, 803 F2d 184.

The jury was instructed on the Government's burden of proof, reasonable doubt of the defendant's guilt, the necessity of intent and the failure of defendant to testify on his own behalf.

Swidler, DC, 55-1 USTC ¶9319. Cert. denied, 350 US 822.

J.L. Lodwick, Jr., CA-8, 69-2 USTC ¶9586, 410 F2d 1202. Cert. denied, 396 US 841.

A conviction for willful failure to timely file income tax returns was upheld after a determination that the district court properly instructed the jury on the issue of good faith. The reasonableness of the tax protestor's good-faith defense was a factor that the jurors could consider in determining whether the protestor's asserted belief that he was not obligated to pay taxes was genuinely held.

R.W. Collins, CA-10, 91-2 USTC ¶50,554, 920 F2d 619.

A tax protestor's conviction on charges of tax evasion and failure to file returns was upheld. The trial court did not commit reversible error when it instructed the jury that neither the taxpayer's opinion that tax laws were unconstitutional nor his disagreement with the government's tax collection system and policies constituted a good-faith misunderstanding of the law.

M.L. Lindsay, CA-10, 99-2 USTC ¶50,648, 184 F3d 1138.

A "deliberate ignorance" jury instruction was proper where an individual did not consult with an attorney or accountant to verify his understanding of the tax law, knew his interpretation differed from that of the IRS, and attended tax avoidance seminars to bolster his beliefs.

D.G. Fingado, CA-10, 91-2 USTC ¶50,528, 934 F2d 1163.

A taxpayer's proposed instruction to the jury in her defense that she did not report her assets to the IRS in good faith reliance on the advice of her accountant was a correct statement of the law, but she was not entitled to the instruction because there was no evidence to support the defense.

J.A. Brimberry, CA-7, 92-1 USTC ¶50,288, 961 F2d 1286.

A longshoreman who was convicted by a jury for willfully evading his taxes was not entitled to a new trial. Although the trial judge did instruct the jury on matters that were not part of the taxpayer's defense, the instructions were fair and proper and did not mislead the jury. Even if the instructions were erroneous, they did not prejudice the taxpayer given the strength of the evidence concerning his tax evasion.

D.E. Dack, CA-7, 93-1 USTC ¶50,162, 987 F2d 1282.

Since an individual had not filed a joint return with her husband for the tax years in question, she did not qualify for an innocent spouse defense, and the court did not err in refusing to instruct the jury on that defense. Further, with respect to the individual's reliance on an IRS-prepared substitute return, the court's instruction on willfulness and good-faith reliance fairly and adequately set forth the individual's theories of defense and applicable law for the jury. No plain error occurred upon the inclusion in a jury instruction of a phrase indicating that "statements of the defendant" did not constitute evidence.

M. Tarrant, DC Mich., 93-1 USTC ¶50,114, 798 FSupp 1292.

Related taxpayers who owned and operated several businesses were properly convicted of willful failure to pay over withheld payroll taxes. The trial court's general willfulness instruction adequately apprised the jury on the elements of the crime, and the court was not required to give specific instructions on the taxpayers' theories of defense. Thus, the taxpayers were not entitled to instructions regarding their alleged reliance on their accountant's advice, good faith belief that they complied with the tax laws, or financial hardship.

P. Evangelista, CA-2, 97-2 USTC ¶50,608, 122 F3d 112.

There was no error in the district court's jury instruction on willfulness, which appropriately placed before the jury the reasonableness of a physician's assertions that he relied upon his accountant honestly and in good faith.

D.M. Grunewald, CA-8, 93-1 USTC ¶50,122, 987 F2d 531. Rehearing denied.

Jury instructions which allowed the jury to infer the element of willfulness for the crime of tax evasion were plain error requiring reversal of the convictions of two individuals. A willful violation of a known legal duty is a statutorily required element of this crime. It is an exception to the general presumption that a taxpayer knows the law. Since the jury instructions included this presumption, the jury was forced to presume that the taxpayers had knowledge of their legal duty. Because the prosecution was not forced to prove this element of the crime, the taxpayers were denied due process.

W.J. Alt, CA-6, 93-2 USTC ¶50,385, 996 F2d 827.

A taxpayer's conviction by a district court for willful tax evasion was upheld. Although the jury instructions did not explicitly state that an "affirmative act" was required, the omission did not amount to an obvious and substantial error because the language used and the statements made during the closing arguments were sufficient to inform the jury. Also, since the jury did not question the instructions given, more explicit instructions were not needed.

J.D. Meek, Jr., CA-10, 93-2 USTC ¶50,409, 998 F2d 776.

A pilot's contention that the trial court erred in not instructing the jury on the advice of counsel defense was not valid because the court's instructions treated the issues fairly and accurately. Moreover, the court's instructions as to willfulness encompassed any defense claiming a good faith belief of lawful conduct. Thus, the taxpayer's conviction and sentencing for tax evasion and failure to file returns on retrial were upheld, consistent with the US Supreme Court's opinion in J.L. Cheek, SCt, 91-1 USTC ¶50,012.

J.L. Cheek, CA-7, 93-2 USTC ¶50,473. Cert. denied, 2/22/94.

An individual's convictions for failure to file income tax returns and currency structuring were upheld where he liquidated his assets to avoid IRS collection and structured his transactions to evade bank currency reporting obligations. The district court properly refused to instruct the jury that transactions exceeding the bank currency reporting threshold must occur on a single day in order to constitute illegal currency structuring since such an instruction would have incorrectly stated the law.

C.L. Paul, CA-11, 94-2 USTC ¶50,301, 23 F3d 365.

An individual's conviction for willful failure to file income tax returns was upheld. The trial court properly instructed the jury to disregard any reference made to an alleged "amnesty" program for delinquent filers. The existence of such a program was not relevant to the issue of the individual's guilt or innocence because he learned of it after completing his crime of failure to file.

G.D. Strong, CA-4 (unpublished opinion), 97-2 USTC ¶50,923, aff'g, per curiam, an unreported District Court decision.

Proposed jury instructions were properly denied.

R.G. Bremner, CA-4 (unpublished opinion), 2001-2 USTC ¶50,535, aff'g, per curiam, an unreported District Court decision.

Taxpayer was properly convicted on two counts of willful tax evasion. An instruction to the jury permitting it to infer from the taxpayer's signature on her joint tax returns that she knew the contents of the returns was not plain error.

L. Tekle, CA-9 (unpublished opinion), 2002-1 USTC ¶50,225, aff'g an unreported District Court decision.

The trial court did not err in refusing to instruct the jury on an individual's sham transaction defense. The proposed instruction did not accurately state the law because it failed to ask the jury to determine whether he had a business purpose for entering into the transaction.

M.Y. Khalaf, CA-9 (unpublished opinion), 2002-1 USTC ¶50,297, aff'g an unreported District Court decision.

An individual was properly convicted of conspiracy to defraud the IRS. The jury instructions clearly required the jury to find intent and an agreement to defraud the IRS.

T. Kosinski, CA-6 (unpublished opinion), 2005-1 USTC ¶50,241, aff'g an unreported DC Mich. decision.

A district court did not err in instructing a jury on an element of willfulness under Code Sec. 7203 for an individual who was convicted of corruptly endeavoring to impede the administration of the tax laws. He had threatened to sue the IRS and its agents, told the IRS that he planned to charge it $500,000 for each "unauthorized" use of his name, and demanded that the IRS cease efforts to subpoena his bank accounts. The court properly instructed the jury that a disagreement with the Internal Revenue Code or a belief that the Code is unconstitutional does not negate the element of willfulness.

S.A. Massey, CA-9 (unpublished opinion), 2005-2 USTC ¶50,482, aff'g in part and rev'g in part an unreported DC Alas. decision.

Jury instructions regarding the requirement that crimes be committed knowingly were sufficient; a specific instruction on good faith was not required. The response by the court to a question asked by the jury during deliberations, taken in the context of the entire instructions and the trial, did not misstate the law.

R.M. Simkanin, CA-5, 2005-2 USTC ¶50,507.

Jury instructions were proper in an individual's trial for failure to file a return and pay employment taxes. The jury was adequately instructed as to the willfulness components of Code Secs. 7202 and 7203. The instructions specified that the government was required to prove beyond a reasonable doubt that the individual was aware of duties that the law imposed on him and that he intentionally violated those duties.

D.G. Pflum, CA-10 (unpublished opinion), 2005-2 USTC ¶50,603, aff'g an unreported DC Kan. decision.

An individual's conviction for tax evasion and willful failure to account for and pay over payroll taxes was affirmed. The taxpayer's argument that the district court failed to properly instruct the jury on the meaning of the term "willfully" was without merit. The record established that the district court instructed the jury at length on the meaning of "willfully."

M.W. May, CA-6 (unpublished opinion),2006-1 USTC ¶50,260, aff'g, per curiam, an unreported DC Ohio decision.

A federal district court's jury instructions in a federal tax evasion case of a dentist who willfully attempted to evade paying income taxes for the tax years at issue did not constitute plain error. The court made it clear that a mere failure to file a return or pay taxes without additional affirmative effort to evade or defeat the tax would be insufficient to support the willful concealment element of a conviction for felony tax evasion.

R.E. Nolen, CA-5, 2007-1 USTC ¶50,285.

In his tax evasion trial, an individual was entitled to present evidence supporting his defense that he had sufficient allowable business expenses to offset unreported income for the year at issue from his work as an independent contractor. His improper report of those expenses as deductions on his corporation's returns did not preclude him from arguing that those deductions were offsets to his individual income.

M. Kayser, CA-9, 2007-2 USTC ¶50,550.

Three partners' convictions for their failure to pay federal employment taxes were vacated and remanded because the district court's jury instructions constructively amended the indictment and were therefore erroneous. The court's instructions had the effect of broadening the indictment because it included the partners' failure to report information to the partnership's accountant and falsifying books and records that was never charged in the indictment.

K. McKee, CA-3, 2007-2 USTC ¶50,778, 506 F3d 225.

An individual was properly convicted and sentenced for conspiracy to defraud the government and for willfully failing to file federal income tax returns. The trial court's instructions to the jury on the individual's good-faith defense did not justify reversal of the individual's convictions because the instructions accurately expressed the law and the individual failed to establish how the instructions prejudiced him.

J.K. Lansing, CA-11 (unpublished opinion), 2008-1 USTC ¶50,167, 263 FedAppx 849, aff'g, per curiam, an unreported DC Fla., decision.

Jury instructions in a chiropractor's trial for tax evasion were complete and accurate and adequately conveyed the law concerning tax evasion. The instructions on his good faith defense specifically stated that his personal research could result in an unreasonable but sincere belief that he had no duty to pay taxes. Instructions on the government's method of calculating his tax deficiency were not required because the government offered direct evidence on his sources of taxable income. Finally, the court did not mislead the jury by clarifying that his questions to the IRS were relevant only to determine willfulness.

E. Innes, CA-11 (unpublished opinion), 2008-1 USTC ¶50,275 ,aff'g, per curiam, an unreported DC Fla., decision.

An individual was properly convicted and sentenced for tax evasion. The government was not required to prove that the individual owed a "substantial" amount of tax because the deficiency was based on returns filed by the individual. Moreover, even if the government had used the net worth theory to prove the deficiency the instruction was still not required because the individual did not dispute the amount owed. Finally, any mistake committed by the trial court when instructing the jury was immediately corrected and did not seriously affect the fairness or integrity of the proceedings.

K. Heath, CA-6, 2008-1 USTC ¶50,360.

In the trial of a chiropractor and his wife for tax evasion and willful failure to file tax returns, the court properly refused to instruct the jury that a formal assessment is necessary to prove tax evasion. The IRS was not required to issue an assessment in order to prove the existence of a tax deficiency. A jury instruction regarding an employer's legal duty to withhold taxes from employees' wages was not erroneous given the manner in which the couple conducted their business in order to evade taxes. Finally, the court's comments during trial did not prejudice the couple or deprive them of a fair trial.

M.A. Gustafson, CA-8, 2008-1 USTC ¶50,393.

A married couple who operated a multi-level marketing program through their foreign and U.S.-based corporations was properly convicted of tax evasion. The trial court's instructions to the jury adequately explained the difference between personal and corporate income and apprised the jury of the issues and the governing law regarding willfulness. The wife failed to show that the court's failure to instruct on the lesser-included offense of misdemeanor tax evasion resulted in a miscarriage of justice.

J. Thompson, CA-10, 2008-1 USTC ¶50,398.

An individual was not entitled to a jury instruction contending that his failure to pay over employee payroll taxes was not willful because he did not have money to pay the taxes. In order to establish willfulness, the government was not required to prove that the individual had the ability to meet his tax obligations. Instead, the failure to pay was willful because the individual knew that he owed taxes and did not pay them.

J.E. Easterday, CA-9, 2008-2 USTC ¶50,512.

An individual convicted of willful failure to collect or pay over tax was not entitled to a judgment of acquittal or a new trial. The jury instructions were appropriate and, contrary to the individual's argument, the ability to pay was not an essential element of the crime required to be included in the jury instruction. Additionally, a special verdict form was not required because it was presumed that the jury followed the instructions.

R. Blanchard, DC Mich., 2008-2 USTC ¶50,535.

An individual was properly convicted and sentenced for willfully attempting to evade and defeat taxes by failing to file income tax returns. The jury instructions clearly stated the elements required for conviction.

N.M. Ware, CA-11, 2008-2 USTC ¶50,550.

Willful Failure to File Return, Supply Information, or Pay Tax: Sufficiency of Indictment or Information: Attempt to defeat and evade income taxes

The attempt to defeat and evade income taxes and failure to file returns, as a charge in the indictment, is sufficient.

E.K. Smith, DC, 1926 CCH ¶7127, 13 F2d 923.

R. Carpenter, DC, 59-2 USTC ¶9713, 175 FSupp 362.

Heasley, CA-8, 55-1 USTC ¶9149, 218 F2d 86. Cert. denied, 350 US 882.

Legatos, CA-9, 55-1 USTC ¶9443, 222 F2d 678.

Manno, DC, 54-1 USTC ¶9379, 118 FSupp 511.

J.W. Janko, CA-8, 60-2 USTC ¶9580, 281 F2d 156.

W.R. Ming, Jr., CA-7, 72-1 USTC ¶9449, 466 F2d 1000. Cert. denied, 409 US 915.

M.D. O'Ferrall, DC Del., 84-2 USTC ¶9483.

E.H. Mathison, CA-8 (unpublished opinion), 98-2 USTC ¶50,560, aff'g, per curiam, an unreported District Court decision.

The indictment was sufficient though it failed to allege that taxpayer acted with a "specific intent" to defraud the Government.

L. Elwert, CA-9, 56-1 USTC ¶9423, 231 F2d 928.

An indictment was sufficient where the charges made followed the statute, the alleged offenses were set out, and sufficient facts were given to apprise the defendants of the crime charged against them so that they could make their defense.

F.L. Wortman, DC, 61-1 USTC ¶9289.

An indictment was sufficient since it contained facts sufficient to constitute an offense against the United States.

W.A. Mousley, CA-3, 63-1 USTC ¶9245, 311 F2d 795. Cert. denied, 372 US 966.

W.B. England, DC, 64-2 USTC ¶9629, 229 FSupp 493.

J.L. Harrold, Sr., CA-10, 86-2 USTC ¶9543, 796 F2d 1275.

It was not necessary that the indictment specify the means by which appellant attempted to evade or defeat the payment of tax, as every attempt to evade or defeat such payment is a law violation.

A. Capone, CA-7, 3 USTC ¶885, 56 F2d 927. Cert. denied, 286 US 553.

Bahcall, DC, 54-1 USTC ¶9271, 116 FSupp 869.

Similarly. A city housing police officer's motion to dismiss an indictment against him for tax evasion and to strike certain words from the indictment was denied. The words, which referred to various means by which the crime was carried out, was an evidentiary matter and did not have to be stricken as surplusage or specified in more detail.

K. Washington, DC N.Y., 97-1 USTC ¶50,129, 947 FSupp 87.

Where the indictment charged only that there was a willful failure to pay the tax (occupational tax on wagering), an offense punishable as a misdemeanor, it did not sufficiently charge the felonious offense of wilful tax evasion for which appellants were convicted.

Clay, CA-5, 55-1 USTC ¶49,074, 218 F2d 483.

An indictment properly charged that the taxpayer's willful attempt to evade taxes by concealing his Irish Sweepstakes winnings in a foreign bank account was a felony, not a misdemeanor.

F.L. McNulty, CA-9, 76-1 USTC ¶9215, 528 F2d 1223. Cert. denied, 425 US 972.

An indictment charging defendant with preparing returns for others and collecting money from others for payment of taxes, without actually filing the returns or paying the taxes, was sufficient, if proved, to justify a finding of "willfulness."

E.J. Mesheski, DC, 59-1 USTC ¶9370, 169 FSupp 372. Rev'd on another ground, CA-7, 61-1 USTC ¶9233, 286 F2d 345.

An indictment was sufficient where it contained both the statutory language and a reference to the specific section alleged to have been violated and disclosed the means by which the defendant had allegedly attempted to evade paying tax.

R.G. Hayes, CA-5, 69-1 USTC ¶9204, 407 F2d 189.

An indictment against the taxpayer on income tax evasion charges for failure to report income which he allegedly received from bribes was dismissed and the case was not sent to the jury because the evidence was grossly inadequate.

S. Coletta, DC, 76-2 USTC ¶9568. Aff'd without opinion, CA-2, 77-1 USTC ¶9179.

A disclosure of grand jury testimony to a special agent who summarized the information for a second grand jury did not result in an invalid indictment. He was authorized to receive the information from the first grand jury as he was the IRS agent assisting the U.S. attorney in preparing the case, his testimony was proper as an indictment may be based on hearsay, and his presence before the grand jury was proper as he was a witness rather than an unauthorized person.

L.J. Block, DC, 82-1 USTC ¶9256, 497 FSupp 629.

Convictions against two individuals on drug charges and criminal tax-related charges were affirmed, because the indictment containing the charges was sufficient. The indictment, which superseded a prior indictment by adding the tax-related counts, did not improperly broaden or amend the prior indictment.

N.C. Edwards, Jr., CA-11, 86-1 USTC ¶9110, 777 F2d 644.

The tax evasion conviction of an individual who filed false withholding forms with his employers and filed no-information tax returns with the IRS, claiming "exception under the Fifth Amendment, U.S. Constitution" was upheld. The fact that the indictment did not specify whether the individual was being charged with evasion of assessment or evasion of payment did not make it improper because it clearly set forth the factual basis for the crimes charged. Furthermore, the individual understood the nature of the charge, as evidenced by his attorney's opening statement to the jury.

K.W. Waldeck, CA-1, 90-2 USTC ¶50,389, 909 F2d 555.

Since the individual taxpayer was not required to file a return when his net income was less than the specified amount, an indictment charging a willful attempt to evade income tax by filing a return in which certain gross income was not included is insufficient because it did not allege that the taxpayer had sufficient net income to require him to file a return.

E. Anderson, CA-7, 1926 CCH ¶7144, 11 F2d 938.

An indictment charging wilful income tax evasion was held to be sufficient even though it referred to the taxpayer's correct "adjusted gross income," rather than "taxable income."

W.T. Radford, CA-9, 61-1 USTC ¶9475, 290 F2d 9.

A tax evasion indictment was adequate even though it did not specify the exact amount of additional tax allegedly due.

R.G. Buckner, CA-9, 80-2 USTC ¶9470, 610 F2d 570.

A tax evasion indictment was legally sufficient.

L.G. Sloan, CA-7, 91-2 USTC ¶50,388, 939 F2d 499. Cert. denied, 1/21/92.

G.M. Bishop III, CA-5, 2001-2 USTC ¶50,762, 264 F3d 535. Cert. denied, 4/22/2002.

Cor-Bon Custom Bullet Co., CA-6, 2002-1 USTC ¶50,395.

A diamond sawblade salesman could not have an indictment charging him with criminal tax evasion dismissed. The indictment was sufficient because it fairly informed him of the charges that he was required to defend and it set forth the elements of the offense, the conduct constituting the offense, the tax deficiency for each tax year, and the type of tax.

N.H. Rhodes, DC Pa., 96-2 USTC ¶50,341, 921 FSupp 261.

Tax evasion charges against an individual were dismissed because documents that he produced pursuant to a grant of immunity were improperly used to convict him, and the independent counsel could not demonstrate with reasonable particularity a prior awareness that the subpoenaed documents existed and were in the individual's possession. The testimonial value of the individual's response to the document subpoena pertaining to the existence, possession or control, authenticity and identity of the requested documents.

W.L. Hubbell, SCt., 2000-1 USTC ¶50,499, 167 F3d 552. Aff'g CA-D.C., 99-1 USTC ¶50,219.

The IRS was not required to charge a couple and their tax attorney with the more specific offense of concealing income or assets instead of indicting them for defrauding the government. Their conduct was not a single incident or mere technical violation of the tax code and the allegations against them were sufficiently set forth in the indictment to apprise them of the crimes charged.

F.Y. Wright, Jr., CA-5, 2000-1 USTC ¶50,438, 211 F3d 233. Aff'g in part and rem'g in part an unreported District Court decision.

A taxpayer's conviction for tax evasion was upheld despite the fact that the indictment did not allege an affirmative act of tax evasion. The record indicated that the taxpayer knew which specific affirmative acts it was accused of committing, and it pursued a vigorous defense to show that it had not committed them. Consequently, the taxpayer was reasonably informed of the charges against it and was not disadvantaged in any way as a result of the indictment's omission of the affirmative act.

An indictment on fraud conspiracy and tax evasion charges arising from the reporting of ordinary income as gain from an involuntary conversion was sufficient under Federal Rule of Criminal Procedure 12(b)(3) since it alleged the necessary elements of the charged offenses.

H. Molaison, DC La., 2005-1 USTC ¶50,198.

The indictment for willful tax evasion of a self-employed individual was sufficient to inform him of the charges against him. The government was not required to allege every component of the willfulness requirement in the indictment. The indictment alleged that the individual failed to file income tax returns and indicated the amount of his taxable income and that a substantial amount of tax was due for the years at issue. Moreover, the indictment was not defective for failure to refer to a statute that required the individual to file returns or pay taxes because it specified that he had violated Code Sec. 7201.

N. Stierhoff, DC R.I., 2007-2 USTC ¶50,626.

The conviction of an estate planner and the leader and organizer of an alleged sham trust for aiding and abetting the willful attempt to evade taxes was upheld. The indictment charging the individual with tax evasion provided sufficient notice of the various charges made against him because it clearly set out the various affirmative acts of evasion that he committed.

J.C. Chisum, CA-10, 2007-2 USTC ¶50,724.

An individual's indictment on tax evasion specified the elements of the offense, contained all the facts required to inform the individual of the charges of a willful attempt to evade income and self-employment taxes, and contained no ambiguity. The mere fact that the indictment did not specify the alleged method of tax evasion did not invalidate the indictment. Tax evasion is a single crime under Code Sec. 7201, and the fact that it can be committed either by evading the assessment or by evading the payment only demonstrates that there are two methods of committing that single criminal act. The indictment clearly alleged commission of an affirmative act in each count of the tax evasion and the additional inclusion of certain omissions as part of the individual's conduct did not make the indictment deficient.

H.C. Bennett, DC Hawaii, 2007-2USTC ¶50,730.

An individual's motion to strike prejudicial references to his alleged failure to file tax returns from his indictment was denied. Although the individual alleged that the language in the indictment should be stricken because the jury would consider failure to file returns as an act of evasion, the language was not irrelevant, inflammatory or prejudicial and, therefore, was properly included in the indictment. Moreover, the individual could eliminate any prejudice by requesting a suitably worded jury instruction.

G.D. Miller, DC La., 2007-2USTC ¶50,735.

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