The defendant is charged in [Count _______ of] the indictment with [specify charge] in violation of Section 7201 of Title 26 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant owed more federal income tax for the calendar year [specify year] than was declared due on the defendant’s income tax return for that calendar year; 

            Second, the defendant knew that more federal income tax was owed than was declared due on the defendant’s income tax return; 

            Third, the defendant made an affirmative attempt to evade or defeat such additional tax; and 

            Fourth, in attempting to evade or defeat such additional tax, the defendant acted willfully. 

Comment 

            See Instruction 22.6 (Willfully—Defined) as to “willfully” in the context of prosecutions for violations of Title 26. 

            The elements of attempted tax evasion under 26 U.S.C. § 7201 are stated in United States v. Kayser, 488 F.3d 1070, 1073 (9th Cir. 2007), as follows: (1) willfulness; (2) the existence of a tax deficiency; and (3) an affirmative act constituting an evasion or attempted evasion of the tax. Id. (citing Sansone v. United States, 380 U.S. 343, 351 (1965); United States v. Marashi, 913 F.2d 724, 735 (9th Cir. 1990)).  “A tax deficiency occurs when a defendant owes more federal income tax for the applicable tax year than was declared due on the defendant’s income tax return.”  Id. At 1073. 

            The first element requires the government to prove there was a tax deficiency, but the deficiency need not be “substantial.”  Marashi, 913 F.2d at 735. 

            “A defendant may negate the element of tax deficiency in a tax evasion case with evidence of unreported deductions.”  Kayser, 488 F.3d at 1073-74 (rejecting argument that defendant was precluded from offering evidence that is inconsistent with information he reported on his tax returns). 

            When a corporation makes a distribution to a stockholder initially characterized as a “distribution,” that “distribution” may subsequently be legitimately characterized as a non-taxable “return of capital” if the corporation has no earnings.  Boulware v. United States, 552 U.S. 421, 430-31 (2008). 

            A defendant accused of tax evasion is not entitled to a lesser included offense instruction based on § 7203 if the act constituting evasion was the filing of a false return.  Sansone, 380 U.S. at 351-52.  In addition, because failure to file a return is an element of a § 7203 failure to file charge but is not an element of a § 7201 tax evasion charge, the offense of failure to file is not a lesser included offense of tax evasion.  United States v. Nichols, 9 F.3d 1420, 1422 (9th Cir. 1993).  See Instruction 6.14 (Lesser Included Offense); Instruction 22.2 (Willful Failure to Pay Tax or File Tax Return).

            The defendant is charged in [Count _______ of] the indictment with willful failure [to pay tax] [to file an income tax return] in violation of Section 7203 of Title 26 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant [owed taxes] [was required to file a return] [was required to keep records] [was required to supply information] for the calendar year ending December 31, [specify year]; 

            Second, the defendant failed to [[pay the tax] [file an income tax return]] [[by April 15, [specify year]] as required by Title 26 of the United States Code; and 

            Third, in failing to do so, the defendant acted willfully. 

Comment 

            See Instruction 22.6 (Willfully—Defined) as to “willfully” in the context of prosecutions for violations of Title 26.

            The defendant is charged in [Count _______ of] the indictment with filing a false tax return in violation of Section 7206(1) of Title 26 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant signed and filed a tax return for the year [specify year] that [he] [she] knew contained [false] [incorrect] information as to a material matter; 

            Second, the return contained a written declaration that it was being signed subject to the penalties of perjury; and 

            Third, in filing the false tax return, the defendant acted willfully. 

            A matter is material if it had a natural tendency to influence, or was capable of influencing, the decisions or activities of the Internal Revenue Service. 

Comment 

            See Instruction 22.6 (Willfully—Defined) as to the meaning of “willfully” in the context of prosecutions for violations of Title 26. 

            Section 7206 creates several distinct crimes.  This instruction applies to § 7206(1) and should be modified if the charge arises under § 7206(3), (4), or (5).  If the charge arises under § 7206(2), see Instruction 22.4 (Aiding or Advising False Income Tax Return). 

            False information is material if it had a natural tendency to influence or was capable of influencing or affecting the ability of the IRS to audit or verify the accuracy of the tax return or a related return.  See United States v. Gaudin, 515 U.S. 506, 509 (1995) (explaining material statement has “natural tendency to influence, or [be] capable of influencing, the decision of the decision making body to which it was addressed”) (quoting Kungys v. United States, 485 U.S. 759, 770 (1988)); see also United States v. Peterson, 538 F.3d 1064, 1067 (9th Cir. 2008) (suggesting district courts should use materiality language approved in Gaudin).  A false statement “need not have actually influenced the agency, and the agency need not rely on the information in fact for it to be material.” United States v. Matsumaru, 244 F.3d 1092, 1101 (9th Cir. 2001) (quoting United States v. Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998). 

            When a corporation makes a distribution to a stockholder initially characterized as a “distribution,” that “distribution” may subsequently be legitimately characterized as a non-taxable “return of capital” if the corporation has no earnings.  Boulware v. United States, 552 U.S. 421, 430-31 (2008). 

            The tax return must have been filed.  See United States v. Boitano, 796 F.3d 1160, 1163 (9th Cir. 2015). 

Revised Sept. 2015

            The defendant is charged in [Count _______ of] the indictment with [aiding] [assisting] [advising] [procuring] [counseling] the preparation of a false income tax return in violation of Section 7206(2) of Title 26 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant [[aided] [assisted] [advised] [procured] [counseled]] [specify person(s)] in the [preparation] [presentation] of an income tax return that was [false] [fraudulent]; 

            Second, the income tax return was [false] [fraudulent] as to any material matter necessary to a determination of whether income tax was owed; and 

            Third, the defendant acted willfully. 

            The government is not required to prove that the taxpayer knew that the return was false. 

            A matter is material if it had a natural tendency to influence, or was capable of influencing, the decisions or activities of the Internal Revenue Service. 

Comment 

            See Instruction 22.6 (Willfully—Defined) as to the meaning of “willfully” in the context of prosecutions for violations of Title 26. 

            “Under § 7206(2), the government must prove that ‘(1) the defendant aided, assisted, or otherwise caused the preparation and presentation of a return; (2) that the return was fraudulent or false as to a material matter; and (3) the act of the defendant was willful.”’  United States v. Smith,424 F.3d 992, 1009 (9th Cir. 2005) (quoting United States v. Salerno, 902 F.2d 1429, 1432 (9th Cir. 1990)). 

            False information is material if it had a natural tendency to influence, or was capable of influencing or affecting, the ability of the IRS to audit or verify the accuracy of the tax return or a related return.  See United States v. Gaudin, 515 U.S. 506, 509 (1995) (explaining material statement has “natural tendency to influence, or [be] capable of influencing, the decision of the decision making body to which it was addressed”) (quoting Kungys v. United States, 485 U.S. 759, 770 (1988)); see also United States v. Peterson, 538 F.3d 1064, 1067 (9th Cir. 2008) (suggesting district courts should use materiality language approved in Gaudin).  A false statement “need not have actually influenced the agency, and the agency need not rely on the information in fact for it to be material.” United States v. Matsumaru, 244 F.3d 1092, 1101 (9th Cir. 2001) (quoting United States v. Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998).

            The defendant is charged in [Count _______ of] the indictment with filing a false tax return in violation of Section 7207 of Title 26 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant [delivered] [disclosed] a tax return knowing that it contained [false] [fraudulent] information as to any material matter; and 

            Second, the defendant acted willfully. 

            A matter is material if it had a natural tendency to influence, or was capable of influencing, the decisions or activities of the Internal Revenue Service. 

Comment 

            See Comment to Instruction 22.1 (Attempt to Evade or Defeat Income Tax). 

            See Instruction 22.6 (Willfully—Defined) as to the meaning of “willfully” in the context of prosecutions for violations of Title 26. 

            False information is material if it had a natural tendency to influence or was capable of influencing or affecting the ability of the IRS to audit or verify the accuracy of the tax return or a related return.  See United States v. Gaudin, 515 U.S. 506, 509 (1995) (explaining material statement has “natural tendency to influence, or [be] capable of influencing, the decision of the decision making body to which it was addressed”) (quoting Kungys v. United States, 485 U.S. 759, 770 (1988)); see also United States v. Peterson, 538 F.3d 1064, 1067 (9th Cir. 2008) (suggesting district courts should use materiality language approved in Gaudin).  A false statement “need not have actually influenced the agency, and the agency need not rely on the information in fact for it to be material.” United States v. Matsumaru, 244 F.3d 1092, 1101 (9th Cir. 2001) (quoting United States v. Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998).

           To prove that the defendant acted “willfully,” the government must prove beyond a reasonable doubt that the defendant knew federal tax law imposed a duty on [him] [her], and the defendant intentionally and voluntarily violated that duty.  

            [If the defendant acted on a good faith misunderstanding as to the requirements of the law, [he] [she] did not act willfully even if [his] [her] understanding of the law was wrong or unreasonable.   Nevertheless, merely disagreeing with the law does not constitute a good faith misunderstanding of the law because all persons have a duty to obey the law whether or not they agree with it.  Thus, to prove that the defendant acted willfully, the government must prove beyond a reasonable doubt that the defendant did not have a good faith belief that [he] [she] was complying with the law.] 

Comment 

            Sections 7201-7207 of the Internal Revenue Code use the term “willfully.”  In Cheek v. United States, 498 U.S. 192, 201 (1991), the Supreme Court set forth the following definition: “Willfulness, as construed by our prior decisions in criminal tax cases, 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.”  This same definition applies to both misdemeanors and felonies in the Revenue Code.  See United States v. Pomponio, 429 U.S. 10, 12 (1976) (citing United States v. Bishop, 412 U.S. 346, 359–60 (1973)).  “In other words, if you know that you owe taxes and you do not pay them, you have acted willfully.”  United States v. Easterday, 564 F.3d 1004, 1006 (9th Cir. 2009).  Despite earlier case law suggesting the contrary, the element of willfulness does not require that the defendant have the financial ability to pay the taxes.  See id. at 1005 (holding that United States v. Poll, 521 F.2d 329 (9th Cir. 1975), is no longer controlling authority in light of intervening Supreme Court decisions).  In a prosecution alleging a failure to file a tax return, the government is not required to prove an intent to evade or defeat a tax.  United States v. Meredith, 685 F.3d 814, 826 (9th Cir. 2012).  “Intent to evade or defeat taxes is merely one possible way to establish willfulness,” and “[a]ny voluntary act committed with the specific intent to disobey or disregard the law qualifies as willfulness.”  Id. 

            The bracketed second paragraph of this instruction may be used when there is evidence the defendant acted on a good faith but erroneous belief as to the requirements of the tax laws.  In United States v. Trevino, 419 F.3d 896, 901 (9th Cir. 2005), the Ninth Circuit explained: 

The government’s burden of proving willfulness requires negating [1] a defendant’s claim of ignorance of the law or [2] a claim that because of a misunderstanding of the law, he had a good-faith belief that he was not violating any of the provisions of the tax laws. This is so because one cannot be aware that the law imposes a duty upon him and yet be ignorant of it, misunderstand the law, or believe that the duty does not exist.  Cheek v. United States, 498 U.S. 192, 202 (1991) (emphasis added) . . .  In order to rely on a good faith defense, the defendant must in fact have some “belief;” either that her own understanding was correct, or that she in good faith relied on the tax advice of a qualified tax professional.  See United States v. Bishop, 291 F.3d 1100, 1106–07 (9th Cir. 2002).

            Nonetheless, Ninth Circuit precedent forecloses the argument that the defendant is entitled to a separate “good faith” instruction “when the jury has been adequately instructed with regard to the intent required to be found guilty of the crime charged.”  United States v. Hickey, 580 F.3d 922, 931 (9th Cir. 2009) (holding no good faith instruction needed when jury properly instructed on intent to defraud). 

            The defendant’s views regarding the validity of a tax statute are irrelevant to the issue of willfulness and, if heard, the jury can be instructed to disregard such views.  See United States v. Powell, 955 F.2d 1206, 1212 (9th Cir. 1992) (concluding that district court did not plainly err in instructing that “[m]ere disagreement with the law, in and of itself, does not constitute good faith misunderstanding under the requirements of law[ ] [b]ecause it is the duty of all persons to obey the law whether or not they [agree with it]”).

            Willfulness is a state of mind that may be established by evidence of fraudulent acts.  See United States v. Voorhies, 658 F.2d 710, 715 (9th Cir. 1981); see also United States v. Conforte, 624 F.2d 869, 875 (9th Cir. 1980). 

Revised Dec. 2012

            The defendant is charged in [Count _______ of] the indictment with [forcibly rescuing] [attempting to rescue forcibly] seized property in violation of Section 7212(b) of Title 26 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, [specify property] was seized as authorized by the Internal Revenue Code; 

            Second, the defendant knew that the property had been seized as authorized by the Internal Revenue Code; and 

            Third, the defendant [forcibly retook] [caused to be retaken forcibly] [attempted to retake forcibly] the property without the consent of the United States. 

            “Forcibly” is not limited to force against persons but includes any force that enables the defendant to retake the seized property. 

            [A defendant “attempts to retake” seized property when that defendant does something that is a substantial step toward retaking the property.  

            A “substantial step” is conduct that strongly corroborated the defendant’s intent to commit the crime.  To constitute a substantial step, the defendant’s act or actions must unequivocally demonstrate that the crime will take place unless interrupted by independent circumstances.  Mere preparation is not a substantial step toward the commission of attempting to rescue seized property. 

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.] 

Comment            

            In attempt cases, “[t]o constitute a substantial step, a defendant’s actions must cross the line between preparation and attempt by unequivocally demonstrating that the crime will take place unless interrupted by independent circumstances.”  United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007) (per curiam) (quoting United States v. Nelson, 66 F.3d 1036, 1042 (9th Cir. 1995)). 

            The “strongly corroborated” language in this instruction comes from United States v. Snell, 627 F.2d 186, 187 (9th Cir. 1980)  (per curiam)(“A conviction for attempt requires proof of culpable intent and conduct constituting a substantial step toward commission of the crime that strongly corroborates that intent.”); and United States v. Darby, 857 F.2d 623, 625 (9th Cir. 1988) (same). 

            Jurors do not need to agree unanimously as to which particular act or actions constituted a substantial step toward the commission of a crime.  United States v. Hofus, 598 F.3d 1171, 1176 (9th Cir. 2010).

Revised May 2023

            The defendant is charged in [Count _______ of] the indictment with failure to report [exporting] [importing] monetary instruments in violation of Sections 5316(a)(1) and 5324(c) of Title 31 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant knowingly [transported] [was about to transport] more than $10,000 in [specify monetary instrument] [[from a place in the United States to or through a place outside the United States] [to a place in the United States from or through a place outside the United States]]; 

            Second, the defendant knew that a report of the amount [transported] [about to be transported] was required to be filed with the Secretary of Treasury; and 

            Third, the defendant intentionally evaded the reporting requirement. 

Comment 

            This instruction covers a violation of 31 U.S.C. § 5316(a)(1), regarding the reporting requirement for exporting or importing monetary instruments.  The reporting requirement for receipt of such instruments after their importation into the United States is codified in 31 U.S.C. § 5316(a)(2). 

            See United States v. Del Toro-Barboza, 673 F.3d 1136, 1144 (9th Cir. 2012) (setting forth the elements of the offense). 

            Knowing concealment is not an element of failure to report under 31 U.S.C. § 5316(a) but is an element of bulk cash smuggling under 31 U.S.C. § 5332(a).  Therefore, where the defendant’s conduct constitutes a violation of both statutory provisions, the offenses do not merge, and cumulative punishment may be imposed.  United States v. Tatoyan, 474 F.3d 1174, 1181-82 (9th Cir. 2007).  As to violations of § 5332(a), see Instruction 22.9 (Bulk Cash Smuggling).  

Revised Aug. 2012

            The defendant is charged in [Count _______ of] the indictment with bulk cash smuggling in violation of Section 5332(a) of Title 31 of the United States Code.  For the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: 

            First, the defendant knowingly concealed more than $10,000 in [specify monetary instrument] [[on his or her person] [in any conveyance, article of luggage, merchandise, or other container]]; 

            Second, the defendant [transported] [attempted to transport] the [specify monetary instrument] [[from a place within the United States to a place outside the United States] [from a place outside the United States to a place within the United States]]; 

            Third, the defendant knew that a report of the amount concealed was required to be filed with the Secretary of Treasury; and 

            Fourth, the defendant intended to evade filing such a report. 

            The intent to evade the reporting requirement can arise at any time prior to (and including) the moment of [attempted] transportation.  It is not necessary that the defendant have such intent at the time the actual concealment occurred. 

Comment 

            The authority for the last paragraph in the instruction is found in United States v. Tatoyan, 474 F.3d 1174, 1180 (9th Cir. 2007). 

            The penalties set forth in 31 U.S.C. § 5322—in particular a fine of up to $250,000—do not apply unless the jury makes an additional explicit finding that the defendant acted “willfully.”  Tatoyan, 474 F.3d at 1180.  Absent such a finding, the applicable penalties are found in 31 U.S.C. § 5332(b) and include a forfeiture provision, but not a fine.  Id. at 1183.