IRC §7201 attempt to evade vs. common-law crime of attempt

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IRC §7201 attempt to evade vs. common-law crime of attempt

No, IRC Section 7201’s definition of “attempt to evade” is materially different from “attempt” crime of common-law. This was one of the holdings of the Supreme Court in the Spies case. See Spies v. United States, 317 U.S. 492, 498-99 (1943).

The distinction between IRC Section 7201’s definition of attempt and the criminal attempt of common law is not a mere hair-splitting matter. The significance is huge. The punishment for attempting a common law crime is less severe than accomplishing the completed act of the crime. For example, the punishment for attempted murder (e.g. trying but failing to kill someone) is less severe than for actually committing murder (actually killing the person).

However, that is not how it works with tax evasion. IRC Section 7201 finds a person liable when he “willfully attempts in any manner to evade or defeat any tax.” In the famous Spies case, the Court stated that this “attempt to evade or defeat” a tax is an “independent crime, complete in its most serious form when the attempt is complete, and nothing is added to its criminality by success or consummation.” In other words, when it comes to tax evasion, attempted “murder equals murder”: attempting to commit tax evasion (whether successful or not) is equally offensive as actually committing tax evasion.