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What elements must be proven to be convicted of tax evasion?

Filing one's taxes can often be a complex and confusing process, especially when the taxes include business income or a significant amount of deductions. It can be easy to make a mistake on a tax return. Pennsylvania taxpayers who have made tax errors may be concerned about whether their mistake will be perceived as tax evasion. Fortunately, the IRS has specifically defined what separates criminal evasion from a simple mistake.

Three elements must be present in order for someone to be convicted of tax evasion. The first is an active attempt to evade a tax assessment. In its definition, the IRS specifically says that a passive neglect or mistake is not the same as an attempt to evade. An attempt to evade is a proactive effort especially for evading taxes. It can include filing a false return, keeping false books, maintaining false invoices and making false statements to Treasury and IRS agents.

The second requirement is that there must be an additional tax due. Even if a person has undertaken evasive behavior, that behavior is only criminal if there is actually a tax due. If there's no tax liability, the evasive behavior isn't yet criminal, although it could be if it leads to a tax due in the future. The final element is a willfulness to violate one's legal duty. This is the important distinction between an accident or mistake and a criminal act. The standard for willfulness is subjective so there's no clear distinction between what is willful and what is accidental. However, if one knows that behavior is illegal and moves forward with that behavior anyway, they may be found to be willfully evasive.

One of the biggest distinctions between a mistake and evasion is whether the party involved knew or believed that they were breaking the law. A good-faith belief that the law was being followed is a legitimate defense in the eyes of the IRS. A tax lawyer could advise an individual or business on whether or not their tax error is one that could be perceived as evasive. If so, the attorney could then advise on how best to move forward and minimize potential penalties.

Source:, "Tax Crimes Handbook", October 24, 2014

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