Willulness is the express statutory requirement for most tax crimes. (Some alternative formulation approaching if not equaling willfulness is required for the tax related crimes, such as tax obstruction or conspiracy; but I focus here on a crime that does have an express requirement of willfulness.) What does willfulness mean? I don't propose to provide a definitive answer here, but will address an aspect of willfulness as played out in United States v. Favato, 2013 U.S.App.LEXIS 16137 (3d Cir. 2013), a nonprecedential opinion, here, [enhanced version available to lexis.com subscribers]. In that case, the defendant, a former accountant with BDO Seidman, had gotten too close to the client and assisted the client in playing fast and loose with taxes. The defendant was convicted of tax obstruction (Section 7212(a)) [enhanced version available to lexis.com subscribers], and aiding and assisting (Section 7206(2)) [enhanced version available to lexis.com subscribers]. On appeal, the defendant complained about the willfulness instruction with respect to the aiding and assistance conviction. Here is the Court's succinct statement of his complaint and holding:
I note in this regard that good faith is not an affirmative defense in a criminal case (although it is commonly characterized as a defense). Surely if the defendant affirmatively proves good faith, he is entitled to acquittal because willfulness cannot exist if there is good faith. The issue here, however, is where the risk lies with respect to good faith properly before the jury where the evidence does not affirmatively establish the defense but the record does not establish lack of good faith (willfulness) beyond a reasonable doubt. It should be with the Government.
View Jack Townsend's opinion in its entirety on the Federal Tax Crimes blog site.
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