Willfulness is defined under the law as a voluntary and intentional violation of a known legal duty and several defenses focus on preventing the government from being able to establish this element. Defenses available to defeat the element of willfulness include inadvertence, negligence, mistake, uncertain legal duty, reliance on others and diminished mental capacity.
Note: Willfulness is often the easiest element of a tax crime to defeat because the government is basically required to prove to a jury what he defendant’s state of mind was at the time of the complained of offense. The government is usually forced to resort to circumstantial evidence to establish this element. For this reason the government usually will not prosecute unless a pattern of complained of behavior can be established. The existence of the pattern itself tends to indicate to a jury that the behavior was intentional and willful rather than mere negligence for example. This is the reason that three years are often at issue in a criminal investigation.
Defenses commonly used in defending tax crimes by Tax Attorneys typically focus on the protecting of the client’s fifth amendment privilege against self-incrimination and fourth amendment privilege against unreasonable searches and seizures.
A Taxpayer’s lack of education and personal difficulties such as health, advanced age or family problems generally are not considered defenses per se but may be used to attempt to discourage prosecution as they might make it harder to convince a jury to convict by creating sympathy for the defendant.