6.26.7206 FALSE INCOME TAX RETURN (26 U.S.C. § 7206(1))

The crime of willfully making and subscribing to a false (describe document, e.g., income tax return) as charged in [Count[s] _____ of] the indictment, has five essential elements, which are:

One, the defendant made and signed (describe document, e.g., an individual income tax return, Form 1040,)¹ for the year in question, that was false as to [describe material matters, e.g., income);²

Two, the return contained a written declaration that it was signed under the penalties of perjury;

Three, the defendant did not believe the return to be true and correct as to [describe material matter, e.g., income];³

Four, the defendant acted willfully; and

Five, the false matter in the (describe document, e.g., income tax return) was material.⁴

The tax return in question must be false as to (describe material matter, e.g., income)⁵ that is (e.g., that the defendant must have received income in addition to that reported on [his] [her] return, regardless of the amount).⁶ However, the Government is not required to prove that the defendant owed an additional tax for the years in issue. Whether the Government has or has not suffered a monetary loss as a result of the alleged return is not an element of this offense.⁷

The fact that an individual's name⁸ is signed to a return means that, unless and until outweighed by evidence in the case which leads you to a different or contrary conclusion, you may find that a filed tax return was in fact signed by the person whose name appears to be signed to it. If you find proof beyond a reasonable doubt that the defendant had signed [his] [her] tax return, that is evidence from which you may, but are not required to, find or infer that the defendant had knowledge of the contents of the return.⁹

To act "willfully" means to voluntarily and intentionally violate a known legal duty.¹⁰

[False matter in a (describe document, e.g., income tax return) is "material" if the matter was capable of influencing the Internal Revenue Service.]

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

Committee Comments

See United States v. Bishop, 412 U.S. 346, 350, 359 (1973); United States v. Engle, 458 F.2d 1017, 1020 (8th Cir.), cert. denied, 409 U.S. 875 (1972); and United States v. Oggoian, 678 F.2d 671, 673 (7th Cir.), cert. denied, 459 U.S. 1018 (1982).

To prove a violation of this statute, the government must establish the following elements: (l) that the defendant made and subscribed a return that was false as to a material matter; (2) the return contained a written declaration that it was made under the penalties of perjury; (3) that the defendant did not believe the return to be true and correct as to every material matter; and (4) that the defendant acted willfully. United States v. Bishop, 412 U.S. 346 (1972); see also United States v. Engle, 458 F.2d 1017, 1020 (8th Cir.), cert. denied, 409 U.S. 875 (1972).

Both "making," i.e., filing, and "signing" must be charged. The gist of the offense is the false statements in the return. The signing and filing of the return provides the jurisdictional element. United States v. Duncan, 850 F.2d 1104, 1111-12 (6th Cir. 1988). See also United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1453-54 (9th Cir. 1986).

In this circuit materiality has been a question of law for the court, rather than a question of fact for the jury. United States v. Holecek, 739 F.2d 331, 337 (8th Cir. 1984), cert. denied, 469 U.S. 1218 (1985). Presumably, materiality is now a question of fact for the jury to decide under United States v. Gaudin, ___ U.S. ___, 115 S. Ct. 2310 (1995). The test of materiality in a false return case is "whether a particular item must be reported in order that the taxpayer estimate and compute his tax correctly." United States v. Warden, 545 F.2d 32, 37 (7th Cir. 1976) (quoting United States v. Null, 415 F.2d 1178, 1181 (4th Cir. 1969)).

Matters held to be material include false statements relating to gross income, United States v. Engle, 458 F.2d at 1019-20; United States v. Hedman, 630 F.2d 1184, 1196 (7th Cir. 1980), cert. denied, 450 U.S. 965 (1981); personal deductions, United States v. Warden, 545 F.2d 32, 37 (7th Cir. 1976); and business loss deductions, United States v. Bliss, 735 F.2d 294, 301 (8th Cir. 1984).

Under the statute the taxpayer is the one who "makes" a return even if he has hired an accountant to prepare the return. United States v. Badwan, 624 F.2d 1228, 1232 (4th Cir. 1980), cert. denied, 449 U.S. 1124 (1981). If this is an issue, the jury may be so instructed.

There is a rebuttable statutory presumption that if an individual's name is signed on a return, then the return was actually signed by that person. 26 U.S.C. § 6064. This presumption applies in criminal cases. United States v. Cashio, 420 F.2d 1132, 1135 (5th Cir. 1969), cert. denied, 397 U.S. 1007 (1970). See also Committee Comments, Instruction 4.13, supra, regarding statutory presumptions. Sections 6062 and 6063 of Title 26 cover signatures to corporate and partnership returns.

The defendant's conduct must have been willful. The term "willfully" as used in the criminal sections of the Internal Revenue Code is a "voluntary, intentional violation of a known legal duty." United States v. Pomponio, 429 U.S. 10, 12 (1976). The Court went on to state that a willful act is defined as one done "voluntarily and intentionally with specific intent to do something which the law forbids."

Willfulness is a question of fact that is to be determined by a consideration of all the facts and circumstances shown by the evidence. Id.; United States v. Miller, 634 F.2d 1134, 1135 (8th Cir. 1980), cert. denied, 451 U.S. 942 (1981). An intent to evade income taxes is not an element of section 7206(l). United States v. Engle, 458 F.2d at 1019.

Various circumstances may indicate willfulness. For example, a defendant's pattern of under reporting large amounts of income may give rise to an inference of willfulness. United States v. Vannelli, 595 F.2d 402 (8th Cir. 1979); United States v. DiBenedetto, 542 F.2d 490, 493 (8th Cir. 1976). Willfulness may also be inferred from the repeated omission of certain items of income. United States v. Tager, 479 F.2d 120, 122 (10th Cir. 1973), cert. denied, 414 U.S. 1162 (1974). Failure to supply an accountant or return preparer with accurate and complete information has also been held to be indicative of willfulness. United States v. Samara, 643 F.2d 701, 703 (10th Cir.), cert. denied, 454 U.S. 829 (1981); United States v. Garavaglia, 566 F.2d 1056 (6th Cir. 1977). Extensive use of currency and cashier's checks may also be indicative of willfulness. Smith v. United States, 348 U.S. 147, 159 (1954); United States v. Holovachka, 314 F.2d 345, 358 (7th Cir.), cert. denied, 374 U.S. 809 (1963); Schuermann v. United States, 174 F.2d 397, 398 (8th Cir.), cert. denied, 338 U.S. 831 (1949).

Good faith is a theory of defense in false return cases. Where defendant has presented evidence of good faith, he is entitled to a jury instruction. See Instruction 9.08, infra; United States v. Kouba, 822 F.2d 768, 771 (8th Cir. 1987). Advice of counsel is a form of a good faith theory of defense. See Instruction 9.08, infra.

Notes on Use

¹ Insert description of return filed. This statute also applies to statements and other documents. If one of these is charged, the instruction should be changed accordingly.

² Insert material matter charged as false. More than one material matter may be charged. If that has been done, the jury may be instructed that it need only find one matter false. See Silverstein v. United States, 377 F.2d 269, 270 n.3 (1st Cir. 1967). Such a finding must be unanimous as to that matter. United States v. Duncan, 850 F.2d 1104, 1110-13 (6th Cir. 1988).

³ Insert material matter charged as false. More than one material matter may be charged. If that has been done, the jury may be instructed that it need only find one matter false. See Silverstein v. United States, 377 F.2d 269, 270 n.3 (1st Cir. 1967). Such a finding must be unanimous as to that matter. United States v. Duncan, 850 F.2d 1104, 1110-13 (6th Cir. 1988).

⁴ The Committee has added materiality as an element for the jury in light of United States v. Gaudin, ___ U.S. ___, 115 S. Ct. 2310 (1995).

⁵ Insert material matter charged as false. More than one material matter may be charged. If that has been done, the jury may be instructed that it need only find one matter false. See Silverstein v. United States, 377 F.2d 269, 270 n.3 (1st Cir. 1967). Such a finding must be unanimous as to that matter. United States v. Duncan, 850 F.2d 1104, 1110-13 (6th Cir. 1988).

⁶ Insert definition or explanation of material matter charged as false. [If the amount of income is false, the amount of understatement is irrelevant. United States v. Hedman, 630 F.2d 1184, 1196 (7th Cir. 1980), cert. denied, 450 U.S. 965 (1981).]

⁷ United States v. Ballard, 535 F.2d 400, 404 (8th Cir.), cert. denied, 429 U.S. 918 (1976); United States v. Miller, 545 F.2d 1204, 1211 n.8 (9th Cir. 1976), cert. denied, 430 U.S. 930 (1977).

⁸ Section 6064, United States Code, Title 26 refers to individuals. Corporate and partnership returns are covered by sections 6062 and 6063 of Title 26. The appropriate language should be used. See also Instruction 4.13, supra.

⁹ See 2 Edward J. Devitt, et al., FEDERAL JURY PRACTICE AND INSTRUCTIONS: Criminal § 56.22 (4th ed. 1990); United States v. Wainwright, 413 F.2d 796, 802 n.3 (10th Cir. 1969), cert. denied, 396 U.S. 1009 (1970); United States v. Brink, 648 F.2d 1140 (8th Cir.), cert. denied, 454 U.S. 1031 (1981); United States v. Cashio, 420 F.2d 1132, 1135 (5th Cir. 1969), cert. denied, 397 U.S. 1007 (1970). See also Committee Comments, Instruction 4.13, supra, regarding specific inferences.

¹⁰ 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, supra.