Taxpayers routinely ask me if they can go to jail for not paying their federal income taxes. Admittedly, the bar is not that high for felony tax evasion—the government must only prove three elements: (i) willfulness; (ii) the existence of a tax deficiency; and (iii) an affirmative act constituting evasion or attempted evasion of tax.[i] Because the existence of a tax deficiency is generally not a big issue in non-payment cases, the government is left focusing on the remaining two elements: the taxpayer’s state of mind and evidence of affirmative acts.
Although the bar for federal tax evasion is low, the government does not have the resources nor the will to go after all evasion non-payment cases. Instead, the government carefully picks and chooses the cases it believes to have the best chances for obtaining criminal convictions. Predictably, this is where the types and quantities of affirmative acts come into play. Because the recent Sixth Circuit decision in Pieron[ii] shows this well, that decision is the topic of this article.
Background
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