6.26.7203 FAILURE TO FILE TAX RETURN (26 U.S.C. § 7203)

The crime of failure to file a tax return as charged in [Count(s) of] the indictment has three essential elements, which are:

One, the defendant was required to file a federal income tax return for (insert taxable year(s) charged);

Two, the defendant knew that [he] [she] was required to file such a tax return; and

Three, the defendant willfully failed to file the required tax return on or before (insert time required by law).

To act "willfully" means to voluntarily and intentionally violate a known legal duty.¹

[A single person [under] [over] sixty-five years old was required to file a federal income tax return for the year(s) (insert years charged), if [he] [she] had gross income in excess of (insert amount)].²

[A married individual was required to file a federal income tax return for the year(s) (insert years charged), if [he] [she] had a separate gross income in excess of (insert amount)³ and a total gross income, when combined with that of [his] [her] spouse, in excess of (insert amount)⁴ where [either] [both] [is] [are] [over] [under] sixty-five years old.]

Gross income includes the following: [Compensation for services, including fees, commissions and similar items] [Gross income derived from business] [Gains derived from dealings in property] [Interest] [Rents] [Royalties] [Dividends] [Alimony and separate maintenance payments] [Annuities] [Income from life insurance and endowment contracts] [Pensions] [Income from discharge of indebtedness] [Distributive share of partnership gross income] [Income in respect of a decedent] [Income from an interest in an estate or trust].⁵

The fact that a person may be entitled to deductions from income in sufficient amount so that no tax is due does not affect that person's obligation to file.

The Government is not required to show that a tax was due and owing or that the defendant intended to evade or defeat the payment of taxes, only that [he] [she] willfully failed to file a return.

If you find beyond a reasonable doubt that the defendant had the required gross income in (insert year, e.g., 1985), then, the defendant was required to file a tax return on or before (insert date, e.g., April 15, 1986).⁶

(Insert paragraph describing Government's burden of proof; see Instruction 3.09, supra.)

Committee Comments

See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal §§ 56.11, 56.12 (4th ed. 1990); Fifth Circuit Instruction 2.89; Eleventh Circuit Offense Instruction 70.

See also Committee Comments, Instruction 6.26.7201, supra.

For a discussion of instructions asserting a good faith defense in tax cases, see Committee Comments, Instruction 9.08, infra.

If a defendant in a failure to file case is allowed to introduce legal and other materials in support of his good faith defense, the following limiting instruction may be appropriate:

The defendant has introduced evidence of advice he heard given by speakers at meetings, tape recorded lectures, essays, pamphlets, court opinions, and other material that he testified he relied on in concluding that he was not a person required to file income tax returns for the years _____ and _____. This evidence has been admitted solely for the purpose of aiding you in determining whether or not the defendant's failure to timely file tax returns for _____ and _____ was knowing and willful and you should not consider it for any other purpose. You are not to consider this evidence as containing any law that you are to apply in reaching your verdicts, because all of the law applicable to this case is set forth in these instructions.

United States v. Miller, 634 F.2d 1134, 1135 (8th Cir. 1980), cert. denied, 451 U.S. 942 (1981).

If the issue arises, the jury may be properly instructed that the government need not prove bad purpose or evil motive. United States v. Jerde, 841 F.2d 818 (8th Cir. 1988).

Notes on Use

¹ See United States v. Pomponio, 429 U.S. 10, 12 (1976); United States v. Jerde, 841 F.2d 818, 821 (8th Cir. 1988) and Instruction 7.02 of this Manual, infra.

^{2, 3, 4} Where more than one year is charged and the gross income amount requiring a return be filed differs in amount, it will be necessary to set forth the appropriate gross income for each of the years in issue. Note also that gross income requirement may vary from year to year depending on the amount allowed as an exemption, the age of the defendant, and, in the case of a married defendant, the age of the spouse. 26 U.S.C. § 6012.

⁵ The instruction should be simplified by eliminating sources of income not shown by the evidence.

⁶ A return made on the basis of the calendar year must be made on or before the 15th day of April, following the close of the calendar year. When April 15 falls on a Saturday, Sunday, or legal holiday, returns are due on the first day following April 15 which is not a Saturday, Sunday, or legal holiday. 26 U.S.C §§ 6072, 6081, 7503.

Returns made on the basis of a fiscal year are generally required to be filed on or before the 15th day of the fourth month following the close of the fiscal year. 26 U.S.C. § 6072(a). Calendar year corporate returns are due on or before the 15th day of March following the close of the calendar year; fiscal year corporate returns are due on or before the 15th day of the third month following the close of the fiscal year. 26 U.S.C. § 6072(b).

Note that the statutory due dates should be adjusted so as to account for any extensions of time for filing a return.