Unlike an attempt to evade taxes, an attempt to evade payment of taxes does not require the existence of a tax deficiency. A tax deficiency exists when the true amount of tax due on a particular return substantially exceeds the amount shown on the original return that was previously filed. A charge of attempted evasion of payment of tax only requires that there be taxes due and owing that remain unpaid. Therefore, a charge of attempted evasion of payment of tax may be brought even when a taxpayer has filed a correct return, so that no tax deficiency exists, but subsequently takes actions with the intention of avoiding payment of the tax due on the correctly filed return by purposefully concealing income or assets during the subsequent collections process. Thus, all that is required is that the taxpayer owes tax, regardless of whether the IRS has yet assessed the taxes. Whether taxes are actually due and thus owed is a question of fact for the jury.
The mere failure to pay assessed taxes, even where intentional, does not constitute the crime of attempted evasion of payment of tax. Some affirmative criminal act, the likely effect of which would be to mislead or to conceal the existence of income or assets in an effort to avoid the payment of tax due and owning is required. Examples of such actions would include transferring title to assets that you own to hide their existence, conducting business under a false identity or through an undisclosed entity to conceal assets or income (frequently involving family members), fraudulently causing an employer to eliminate wage withholding, engaging in the extensive use of cash or cash structuring to avoid the $10,000 cash reporting requirement, or removing of cash and assets out of the country. On the other hand, the willful failure to pay tax, in the absence of an affirmative act, can only be punished as a misdemeanor.