Theories of Criminal Liability for Tax Evasion

Abstract

This article discusses the theories under which a defendant can be found guilty for the crime of tax evasion. Either a taxpayer or an enabler can be found guilty as a principal for the crime of tax evasion. The more difficult question is the role of derivative liability -- i.e., liability, or guilt, other than as a principal can apply to the crime of tax evasion. The theories of derivative liability including aiding and abetting under 18 USC 2(a), causing under 18 USC 2(b), and Pinkerton liability for crimes committed by another person who is a co-conspirator. These questions were presented in a trilogy of recent mega tax shelter cases involving variants of the Son-of-Boss tax shelter. In these cases, the enablers were indicted, tried and convicted for tax evasion. In the first two cases, the trial judge submitted to the jury the theories of derivative liability. In the third and final case, the trial judge declined to so instruct, instinctively feeling that submitting theories of derivative liability would not assist the jury in its task. In this paper I discuss these cases and the underlying theories of liability and conclude that the trial judge in the third case got it right. Although I discuss these theories of derivative liability in a tax evasion context, the reasoning should apply in other federal criminal contexts as to crimes for which a defendant, based on his or her action, could be directly liable as a principal for the crime in question.