Introduction

Affirmative defenses are rare in criminal tax cases. The government has the burden to prove each and every element of the offense beyond a reasonable doubt. As a result, the burden is generally on the government to prove all the relevant facts to the jury, and the defendant may simply put on evidence that will counter the government’s proof.

What this means is that the defendant can deny having the required mental state to commit tax evasion without shifting the burden from the prosecution to himself to prove that he lacked the required mental state. Indeed, the burden remains firmly on the prosecution. Sandstrom v. Montana, 442 U.S. 510, 524 (1979). To the extent that the defense raises a defense to rebut an element of the offense, it need only introduce a prima facie case.

In United States v. Sun Myung Moon, 718 F.2d 1210 (2d Cir. 1983), the Second Circuit Court of Appeals explained this important distinction:

[T]he government must prove every element of the offense charged beyond a reasonable doubt. One of those elements is that Moon had income from the Chase accounts and the Tong I1 stock distribution that he failed to report. Defendant may then present an “affirmative defense,” one which does not rebut an element of the crime, or some other defense which rebuts an element of crime. If defendant asserts an affirmative defense, he bears the burden of proof on it. Here, since the defense theory that Moon was acting only as a trustee rebuts the “ownership” element of the crime charged, it was not an affirmative defense. Hence, the only burden on Moon was to present a prime facie case that he held the assets in trust.

[718 F.2d at 1224.]

Despite this distinction, courts and the government nevertheless refer to claims by a defendant as “affirmative defenses.” Keeping in mind the distinction articulated in Moon, we will discuss defenses to tax crimes that are as ironclad as the allied offensive on “D Day.”

Next:  I. Forgotten-Deduction Defense

In accordance with Circular 230 Disclosure