In order to bring a charge against a taxpayer for the violation of a federal tax statute, the U.S. Department of Justice must be able to prove the existence of certain facts. These facts are called the elements of the crime.

Here are the elements of the most important criminal tax statutes:

Failure to File a Tax Return – 26 U.S.C. § 7203

What the government must prove:

To establish the offense of failure to make (file) a return, the government must prove three essential elements beyond a reasonable doubt:

1.  Defendant was a person required to file a return;

2.  Defendant failed to file at the time required by law; and,

3.  The failure to file was willful.

Filing a False Tax Return – 26 U.S.C. § 7206(1)

What the government must prove:

The elements of a section 7206(1) prosecution are as follows:

1.   The defendant made and subscribed a return, statement, or other document which was false as to a material matter;

2.   The return, statement, or other document contained a written declaration that it was made under the penalties of perjury;

3.   The defendant did not believe the return, statement, or other document to be true and correct as to every material matter; and

4.   The defendant falsely subscribed to the return, statement, or their document willfully, with the specific intent to violate the law.

Tax Evasion – 26 U.S.C. § 7201

What the government must prove:

To establish a violation of section 7201, the following elements must be proved:

1.   An attempt to evade or defeat a tax or the payment
thereof.;

            2.   An additional tax due and owing; and

             3.   Willfulness.  

 The government must prove each element beyond a reasonable doubt.

Failure to Remit – 26 U.S.C. § 7202

What the government must prove:

To establish a violation of section 7202, the following elements must be proved beyond a reasonable doubt:

1.  Duty to collect, and/or to truthfully account for, and/or pay over;

2.  Failure to collect, or truthfully account for, and/or pay over; and

3.  Willfulness.

Cases prosecuted under this statute usually involve social security taxes (FICA) and withholding tax.  The duty of employers to collect, truthfully account for, and pay over is created by sections 3102(a), 3111(a), and 3402 of the Internal Revenue Code of 1986.

Structuring – 31 U.S.C § 5324

What the government must prove:

In Ratzlaf v. United States, 510 U.S. 135, 147 (1994), the Supreme Court held that “to give effect to the statutory ‘willfulness’ specification [in 31 U.S.C. § 5322], the government [must] prove [that the defendant] knew that the structuring he undertook was unlawful.” In other words, the government must prove, as an element of its structuring case, that the defendant knew “not only of the bank’s duty to report cash transactions in excess of $10,000, but also of his duty not to avoid triggering such a report.”

In a direct response to Ratzlaf, Congress amended 31 U.S.C. § 5324 by deleting the statutory “willfulness” requirement. Under this “Ratzlaf fix” it is now only necessary to prove that the defendant acted for the purpose of evading the reporting requirements. This statute took effect on September 23, 1994.