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Possibly. The answer turns on knowing more about your specific facts and circumstances.
In general, IRC §7203 makes it a misdemeanor for willfully failing to file a tax return or pay one’s tax liability. However, a different Code Section (§7201) makes non-filing a felony if certain other facts are present. Specifically, Section 7201 makes it a felony if you “willfully attempt in any manner to evade or defat any tax.” The crime resides with attempting evasion, irrespective of whether one is successful. Case law clarifies that in order for a taxpayer to “attempt” to evade a tax, he must undertake some affirmative action of evasion. Spies v. United States, 317 U.S. 492, 498-99 (1943). Case law also makes clear that a mere act of willful omission is not enough for an affirmative act. United States v. Masat, 896 F.2d 88, 97-99 (5th Cir. 1990).
Passively failing to file a tax return is not tax evasion. Thus, if you fail to file your tax return, the government can assert that you attempted to evade your taxes (a crime) only if you also engaged in some “affirmative act” to conceal or mislead the government. Thus, two things need to be present: (1) you failed to file your tax return when you should have, and (2) to engaged in some act to affirmatively conceal or mislead the government.
Unfortunately for many taxpayers, case law has greatly expanded what it means to engage in an “affirmative act of evasion.” It includes such things as making a false invoice, making fictitious accounting entries, maintaining a double set of accounting records, or destroying financial records. The Supreme Court even provided a catch-all: a taxpayer engages in an affirmative act of evasion whenever he engages in “any conduct, the likely effect of which would be to mislead or to conceal.” Spies v. United States, 317 U.S. 492, 499 (1943). And the IRS’s criminal investigation division will always attempt to find say this catch-all provision applies.
To answer the original question, then, you might be guilty of tax evasion if you (1) failed to file your tax return and (2) you also engaged in “any conduct, the likely effect of which would be to mislead or conceal” the government as to your tax liability. Qualified legal counsel can help you answer whether these two elements are present in your case.
