Section 2800 | CALCRIM (Jury Instructions)

The two bracketed paragraphs that begin with “If the People prove beyond a
reasonable doubt that” both explain rebuttable presumptions created by statute. (See
Rev. & Tax. Code, §§ 19703, 19701(d); Evid. Code, §§ 600–607.) The California
Supreme Court has held that a jury instruction phrased as a rebuttable presumption
in a criminal case creates an unconstitutional mandatory presumption. (People v.
Roder (1983) 33 Cal.3d 491, 497–505 [189 Cal.Rptr. 501, 658 P.2d 1302].) In
accordance with Roder, the instructions have been written as permissive inferences.
In addition, it is only appropriate to instruct the jury on a permissive inference if
there is no evidence to contradict the inference. (Evid. Code, § 640.) If any evidence
has been introduced to support the opposite factual finding, then the jury “shall
determine the existence or nonexistence of the presumed fact from the evidence and
without regard to the presumption.” (Ibid.)
Therefore, the court must not give the bracketed paragraph that begins with “If the
People prove beyond a reasonable doubt that the Franchise Tax Board” if there is
evidence that the return was filed or the information was supplied.
Similarly, the court must not give the bracketed paragraph that begins with “If the
People prove beyond a reasonable doubt that the defendant was the (president” if
there is evidence that someone else was responsible for filing the return or
supplying the information.
AUTHORITY
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Elements. Rev. & Tax. Code, § 19701(a).
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Certificate of Franchise Tax Board. Rev. & Tax. Code, § 19703.
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President Responsible for Corporate Filings. Rev. & Tax. Code, § 19701(d).
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Mandatory Presumption Unconstitutional Unless Instructed as Permissive
Inference. People v. Roder (1983) 33 Cal.3d 491, 497–505 [189 Cal.Rptr. 501,
658 P.2d 1302].
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Need Not Prove Exact Amount. United States v. Wilson (3d Cir. 1979) 601 F.2d
95, 99; United States v. Johnson (1943) 319 U.S. 503, 517–518 [63 S.Ct. 1233,
87 L.Ed. 1546].
•
Need Not Prove From Illegal Activity. People v. Smith (1984) 155 Cal.App.3d
1103, 1158 [203 Cal.Rptr. 196].
COMMENTARY
Revenue and Taxation Code section 19701(a) does not require that the defendant’s
conduct be “willful” and specifically states that the act may be “[w]ith or without
intent to evade.” (Rev. & Tax. Code, § 19701(a).) Courts have held that this
language creates a strict liability offense with no intent requirement. (People v. Allen
(1993) 20 Cal.App.4th 846, 849 [25 Cal.Rptr.2d 26]; People v. Kuhn (1963) 216
Cal.App.2d 695, 698 [31 Cal.Rptr. 253]; People v. Jones (1983) 149 Cal.App.3d
Supp. 41, 47 [197 Cal.Rptr. 273].) In addition, in People v. Hagen (1998) 19 Cal.4th
652, 670 [80 Cal.Rptr.2d 24, 967 P.2d 563], the Court held that section 19701 was a
lesser included offense of section 19705, willful failure to file a tax return. The
CALCRIM No. 2800
TAX CRIMES
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Court then concluded that the failure to instruct on the lesser included offense was
not error since the “the evidence provided no ba