Tax Crime Defenses

Tax evasion is a federal crime and is covered under 26 U.S.C.A. § 7201.  While state taxes and state laws vary, most have very similar laws regarding the crime of tax evasion.  Even the basic elements for both federal tax evasion and state tax evasion are nearly identical:

  1. The taxpayer willfully failed to file and;
  2. Committed an affirmative act to evade the tax;
  3. And a tax deficiency actually exists.


In order for someone to be convicted on charges of tax evasion– whether it is in state or federal court– all three of these charges must be proven beyond a reasonable doubt.

Defenses to Charges of Tax Evasion

To prove a crime of tax evasion, the prosecution must prove beyond a reasonable doubt that all three elements of the tax crime exist:

  1. The prosecution must prove that the defendant acted knowingly and willingly with the intent to commit tax evasion.
  2. The prosecutor must prove the defendant actually committed an affirmative act to evade the taxes.
  3. The prosecution must prove that a tax deficiency actually exists between what is owed and what was paid, if anything at all.

From the requirements set above, some possible defenses exist.

First, accidental tax evasion is not a crime and a person cannot be prosecuted for tax evasion if the individual did not purposely and willingly act to avoid taxes.

Secondly, even if a person willingly and intentionally makes an affirmative act to avoid or conceal taxes or income, a person cannot be convicted for tax evasion if no deficiency actually exists between what was paid and what is owed. Read the following articles for further defenses to tax evasion:

  1. Absence of a Deficiency
  2. Amendment of Return Defense
  3. Fatal Variance Defense
  4. Selective Prosecution
  5. Third Party
  6. Tax Defenses that Rarely Work
  7. Mistake of the Law


It’s important to note that while an individual cannot be charged with tax evasion if no tax discrepancy exists, it may still be possible to be charged with other related crimes, such as filing false returns.

If at any time, you feel unsure about whether your filing methods are within IRS’s tax return guidelines, contact the tax attorneys at The Blanch Law Firm immediately.

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