False Return / Aiding False Return Elements of the Offense

26 U.S.C. § 7206 contains distinct offenses, and two of them account for most prosecutions. One addresses the person who signs a false document under the penalties of perjury. The other addresses the person who helps prepare or present one. Federal jury instructions translate each into components a jury must find beyond a reasonable doubt, and a defense usually succeeds on one component rather than on the case as a whole.

On this page

The Subscribing Offense

For the subsection directed at the signer, the government must establish that the defendant made and subscribed a return, statement, or other document that contained or was verified by a written declaration made under the penalties of perjury; that the document was false as to a material matter; that the defendant did not believe it to be true and correct as to that matter at the time of signing; and that the act was willful.

Two features distinguish this from an evasion charge. The enquiry is directed at the document and the declaration attached to it rather than at conduct aimed at defeating a tax. And the components run to falsity, materiality, and the signer’s belief, which means the evidence that answers the charge is the paperwork around the return and the exchange with whoever prepared it.

The Aiding Offense

For the subsection directed at assistance, the government must establish that the defendant aided or assisted in, or procured, counseled, or advised, the preparation or presentation of a return, affidavit, claim, or other document; that the document was fraudulent or false as to a material matter; and that the defendant acted willfully.

The subsection applies whether or not the falsity was known to or consented to by the person authorized or required to present the document. That is why a preparer, bookkeeper, or adviser can face charges arising from returns signed by clients who are treated as witnesses. It also means the defense does not turn on the client’s state of mind but on what the client supplied and what the defendant knew.

Materiality

Both subsections require falsity as to a material matter. Materiality asks whether the statement was capable of influencing the taxing authority in the administration of the tax laws.

It is a component to be established rather than assumed from the fact that an entry was wrong. Entries with no effect on liability, items misclassified but disclosed elsewhere on the same return, timing questions rather than substantive ones, and omissions from schedules that do not bear on the computation all support argument. Counsel traces each charged entry through to the liability before treating the component as satisfied.

Willfulness

Willfulness in criminal tax matters means the voluntary and intentional violation of a known legal duty. Carelessness does not satisfy it, and neither does a position that later proved incorrect.

For a signer, the component overlaps with belief and is answered largely by what was disclosed to a preparer and what came back. Reliance on a qualified professional, where the relevant facts were disclosed and the advice was followed, is a recognized route to negating it. For a preparer, the component turns on what the client supplied and what the preparer knew, and it is proved or disproved from intake forms, retained source documents, and notes made at the time.

How the Components Are Charged and Tried

Section 7206 is charged per document, so an indictment can carry many counts arising from one practice or a short period, each requiring proof of every component for that document. Aggregate proof does not establish a count.

Venue follows the acts alleged, which is how matters arising in Northern Virginia reach the Eastern District of Virginia. Where a count rests on several allegedly false entries, whether jurors must agree on which entry was false and material can arise, and it belongs at the instruction conference rather than after a verdict. Requests to tailor the jury instruction to the subsection actually charged belong in the same discussion, because the components of the two subsections are not interchangeable.

Frequently Asked Questions

Does the government have to prove I owed more tax?

The components of these subsections run to the document rather than to a computation of liability. The government must establish falsity as to a material matter and the state of mind the subsection requires. Materiality still ties the false statement to the administration of the tax laws, so the effect of an entry remains relevant, but the enquiry is not the same as the one a court makes on an evasion charge.

Can I be charged over a return signed by someone else?

The aiding subsection reaches a person who aided, assisted, procured, counseled, or advised the preparation or presentation of a false or fraudulent document, and it applies whether or not the falsity was known to or consented to by the person required to present it. Preparers and advisers can therefore face charges over documents signed by clients. The components then turn on what was supplied to them and what they knew.

What makes a statement material?

Capability of influencing the taxing authority in administering the tax laws. That is a broader test than an effect on the tax owed, but it is not automatic. Entries that changed nothing, items disclosed in full elsewhere on the return, and questions of timing rather than substance all support argument, and the component is decided on the return as a whole rather than on the charged line alone.

Is each false entry a separate count?

The offense is defined by the document, so counts ordinarily follow documents rather than individual entries. A single return containing several allegedly false items is normally one count, and where the government relies on several entries within a count, the question of juror agreement on which entry was false and material can be raised at the instruction conference.

Where do the instructions a jury receives come from?

Federal courts of appeals publish pattern criminal jury instructions that trial courts in their circuits use as a starting point, and the Eastern District of Virginia sits within the Fourth Circuit. The pattern is a starting point rather than a limit. Counsel can request modifications where the subsection charged and the theory advanced call for them, and those requests are made before the case goes to the jury.

Working With Law Offices Of SRIS, P.C.

The components of the two subsections are not interchangeable, and identifying which one is charged decides what evidence the defense needs first.

Mr. Sris, Owner and Founder of Law Offices Of SRIS, P.C., is a former prosecutor and is admitted in Virginia, Maryland, the District of Columbia, New Jersey, and New York. The firm has been practicing since 1997. Mr. Sris and the firm’s Of Counsel attorneys handle criminal defense matters across those jurisdictions, which matters in federal practice because a single investigation frequently reaches conduct, witnesses, and records in more than one state. Mr. Sris brings a background in accounting and information systems from George Mason University, applied to complex financial and technology-related cases.

The firm serves Northern Virginia from 1655 Fort Myer Dr, Suite 700, Room 719, Arlington, VA 22209 and central Virginia from 7400 Beaufont Springs Drive, Suite 300, Room 395, Richmond, VA 23225. By appointment. Call (888) 437-7747 to schedule. Request a consultation. Reach our location at (888) 437-7747.

This page provides general information about the elements of offenses under 26 U.S.C. § 7206 and does not create an attorney-client relationship. Case results depend on a variety of factors unique to each case. Results may vary.

Attorney advertising. Prior results do not guarantee a similar outcome.

Attorney responsible for this advertising: Mr. Sris.

These are the elements the government must prove. Our page on false return aiding false return charges covers the offence as a whole.