The Willfulness Element of Most Tax Crimes Not Present in All Tax Crimes

The Willfulness Element of Most Tax Crimes Not Present in All Tax Crimes

Practitioners and students of tax crimes know that most of the commonly charged tax crimes have an element of willfulness which the Supreme Court interpreted in Cheek to mean a voluntary intentional violation of a known legal duty. In other words, conviction requires that the Government prove that the defendant knew the law and intended to violate the law. In Cheek, the Court said that proof that the defendant acted in good faith would perforce negate willfulness. Some tax crimes do not have an explicit requirement of willfulness but have an equivalent element that substantially overlaps willfulness. E.g., Section 7212(a)'s requirement that the defendant act corruptly and even the defraud conspiracy in 18 USC 371. See John A. Townsend, Tax Obstruction Crimes: Is Making the IRS's Job Harder Enough, 9 Hous. Bus. & Tax. L.J. 255, 277-314 (2009), here.

But not all tax crimes will have such a heightened mens rea requirement as in Cheek.

In United States v. Jirak, 2013 U.S. App. 17937 (8th Cir. 2013), here, [enhanced version available to lexis.com subscribers], the defendant was convicted inter alia of violating 18 USC 287, which provides:

View Jack Townsend's opinion in its entirety on the Federal Tax Crimes blog site.

For additional insight, explore Tax Crimes, authored by Jack Townsend and available at the LexisNexis® Store

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