4.26.7203 Failure to File a Tax Return, 26 U.S.C. § 7203 See Statute
[Defendant] is charged with willful failure to file a tax return for the year[s] [_______]. It is against federal law to engage in such conduct. For you to find [defendant] guilty of this charge, the government must prove each of the following three things beyond a reasonable doubt:
First, that [defendant] was required to file an income tax return for the year[s] [______];
Second, that [defendant] failed to file an income tax return for the year[s] in question; and
Third, that [defendant] acted willfully.
To act “willfully” means to violate voluntarily and intentionally a known legal duty to file, not to act as a result of accident or negligence.
(1) Failure to file a tax return under § 7203 is a misdemeanor. In the appropriate circumstances, the charge can be used as a lesser included offense for the crime of willful tax evasion under § 7201. See Spies v. United States, 317 U.S. 492, 497-99 (1943). “Willful but passive neglect of the statutory duty may constitute the lesser offense, but to combine with it a willful and positive attempt to evade tax in any manner or to defeat it by any means lifts the offense to the degree of felony.” Id. at 499.
(2) See Comment to Instruction 4.26.7201 (Income Tax Evasion) for a discussion of willfulness, good faith and deliberate ignorance in the context of tax crimes. See also United States v. Turano, 802 F.2d 10, 11 (1st Cir. 1986) (stating that trial court’s instruction on good-faith defense did not “improperly inject[ ] an objective element into the subjective willfulness inquiry”); United States v. Sempos, 772 F.2d 1, 2 (1st Cir. 1985) (“Financial or domestic problems . . . do not rule out willfulness. . . .”).