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What is the difference between tax perjury and tax evasion?

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    A careful reading of the criminal statutes for tax perjury (IRC §7206(1)) and tax evasion (IRC §7201) reveal that these two crimes are very similar. However, despite their similarity, there are a few key differences. As explained below, factual scenarios exist where the violation of one can occur without the other.

    Understanding Tax Evasion

    Tax evasion exists when a taxpayer acts (1) willfully in (2) making an affirmative act of evasion (or attempts to evade) as a way of avoiding (3) his tax liability or its payment (IRC §7201). Tax evasion presupposes that a tax is “due and owing.” This is an important distinction versus tax perjury, and we’ll discuss the differences momentarily.

    The IRS recognizes two types of tax evasion.

    • Evasion of Assessment – This occurs when a taxpayer intentionally under-reports assets or income in an effort to defeat a tax assessment.
    • Evasion of Payment – This occurs when a taxpayer conceals money or assets from the IRS that could be used to pay a tax bill.

    Although the IRS typically does not ordinarily aggressively seek prison time in tax evasion cases when people simply don’t file even though not doing so where legally required to is ordinarily chargeable as a misdemeanor, unless Spies Evasion factors are present, (evasion of assessment), the IRS is much more aggressive about seeking prison time for people who attempt to hide assets and income that could be used to pay tax bills (evasion of payment). In either case, a tax attorney can help you deal with these types of situations.

    Understanding Tax Perjury

    The tax perjury statute is IRC § 7206(1), which makes it a crime for anyone to willfully make a false material statement on a tax return. Broken up into its elements, this crime exists when (1) the defendant signed a tax return containing a written declaration that it was made under the penalty of perjury; (2) the return contained a false statement, (3) about a material matter (e.g., underreporting income), (4) and the taxpayer knew the statement was false; and (5) he made the statement willfully (that is, with the intent to violate his legal duty).

    It is a surprising fact that, strictly speaking, tax perjury under § 7206(1) does not require an “intent to evade” a tax or its payment (as does the tax evasion statute under §7201). This is because tax evasion under IRC §7201, but not tax perjury under §7206(1), requires that the taxpayer attempt to evade a tax that is “due and owing.”

    Thus, because § 7206(1) does not require there to be a “tax due and owing” it is possible for the IRS to find a violation even where a taxpayer fully pays his or her tax liability (and, even harder to believe, where he or she materially overstates his or her tax liability).

    Perjury, but No Evasion

    Ultimately, IRC § 7206(1) can apply in instances where IRC § 7201 cannot. When might this be the case? Suppose a taxpayer lied about the source of his income but paid all his taxes on the actual amount. For example, suppose he purports to run a lucrative car wash business, and reports his income and pays his taxes, but his actual income source is from selling drugs.

    As an initial matter, the taxpayer cannot be found guilty under the tax evasion statute because he does not have a “tax due and owing”. After all, he paid his taxes. However, this situation could be sufficient for tax perjury. Thus, tax perjury could apply but tax evasion could not.

    As explained elsewhere on this site, a misstatement as to the source of one’s income is a material matter for purposes of the tax perjury statute, even if there is no misstatement as to the amount of the income reported. See United States v. DiVarco, 343 F. Supp. 101, 103 (N.D. Ill. 1972).

    Should you have additional questions about tax perjury and tax evasion situations, please contact the professionals at The Tax Law Offices of David W. Klasing at 800-681-1295 or through our online link.

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