It is against federal law to try to evade or defeat the assessment or payment of federal income tax. “Assessment” is the determination of a person’s federal income tax liability.
For a defendant to be found guilty of this crime, the government must prove the following things beyond a reasonable doubt:
- That a defendant owed substantially more federal income tax than was indicated as due on their federal income tax return, or substantially more than zero if they filed no return.
- That a defendant willfully attempted to evade or defeat the assessment or payment of this tax.
- That a defendant committed an affirmative act in furtherance of this willful attempt.
A person may not be convicted of attempting to evade or defeat the federal income tax assessment or payment on the basis of a willful omission alone, such as mere failure to file a Form 1040 or mere failure to pay the tax due; they must have undertaken an affirmative act of evasion.
The affirmative act requirement can be met by the filing of a frivolous tax return that substantially understates taxable income, by the filing of a false Form W-4, or by other affirmative acts of concealment of taxable income such as keeping a double set of books, making false entries or alterations or false invoices or documents, destroying books or records, concealing assets or covering up sources of income, handling one’s affairs so as to avoid keeping customary records, and/or other conduct whose likely effect would be to mislead the Internal Revenue Service or conceal income.
To prove that a defendant acted “willfully,” the government must prove that the law imposed a duty on him, that they knew of the duty, and that he voluntarily and intentionally violated that duty.